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SQE1 - Dispute Resolution

SQE1 - Dispute Resolution

Essential SQE1 Functioning Legal Knowledge (FLK) assessment preparation for Dispute Resolution

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with Darren Hackley-Green

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Description

This comprehensive course covers key aspects of dispute resolution and related legal principles as required for the SQE1 exam. Participants will gain a robust understanding of:

- Funding in Dispute Resolution

- Costs

- Costs Assessment Proceedings

- The CPR: An Introduction

- ADR

- Pre-Action Protocols

- Limitation

- Issuing

- Service

- Defences

- Additional Claims

- Statements of Case

- Case Management and Allocation

- Disclosure

- Witness Evidence

- Expert Evidence

- Part 36 and Settlement

- Applications

- Specific Applications

- Trial Procedure

- Appeals

- Enforcement

- Ethics and Conduct in Dispute Resolution

The course emphasises effective application of core legal rules and principles to realistic scenarios, providing learners with the knowledge and practice to competently handle ethical and client-based issues in dispute resolution.

What you'll learn

Provide learners preparing for the Solicitors Qualifying Examination (SQE1) Functioning Legal Knowledge (FLK) assessments the knowledge and practice needed to complete the Dispute Resolution topic for FLK1

Requirements

Watch the recorded webinar and review any supporting documentation.

Who is the target audience?

This course is designed for aspiring solicitors preparing for the SQE1 exam

Course Content

Recorded Webinars

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Part 1 - Webinar

00:31:17

Recorded webinar presented by Darren Hackley-Green

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Part 2 - Webinar

00:40:16

Hello, my name is Darren Hackett Green. Uh This is film two on the dispute resolution course for SQE and this film is going to deal with the issue of costs, but a separate film uh which is film three, which deals with the issue of cost assessment, uh which is a separate matter considered, say in another, in another film as the SQE assessment criteria, we're expected to be aware of it's gonna go through uh in um turn nine. So you're looking at at costs as a general overview, the client's got a contractual obligation to pay all of the costs incurred in bringing or defending the claim in question. Obviously, that's subject to this type of funding agreement uh which is in place and we saw funding in the uh in the previous film. However, the clients may be able to recover a proportion of those costs from their opponents. Uh was the entitlement to such uh is established, the parties will attempt to endeavor to agree the amount of those costs of liability for those costs. And of course, if they can't agree that it falls to a court assessment procedure, which we're gonna look at in the, uh, next film. Two fundamental principles in relation to costs are the payments of costs by one party to another is at the discretion of the court. The court always has elements of discretion when looking at the sum to be involved in relation to costs themselves. But also the lo that should pay the winner's costs as a general rule. But of course, uh, that's changed slightly with the introduction of qu qualified one way cost shifting, which takes a bit of, um, getting your head around. But we'll look at that in a lot more detail, uh, later on in this, uh, in this film. So elements of discretion, we talked about the court having a discretion in relation to costs when it exercises its exercises its discretion, of course, required taking into account all of the circumstances of the case. But in particular, they'll bear in mind the conduct of the parties, whether a party has succeeded on part or all of its case, even if not wholly um successful and any offers, uh, generally not part 36 offers because they, uh, are dealt with under separate elements of a limited discretion. Let's put it that way. You'll see that in a, in a future film. When we deal with part 30 Sixes and the cost implications of that, the element of discretion really comes into, uh, offers other than those made by way of part 36 a party's conduct can include various matters, uh preissing con Preiss issue conduct as well, obviously post uh issue conduct, compliance or non compliance with preaction protocols, the reasonableness of the pursuit of a particular allegation or issue the manner in which they uh pursued or defended their claim or a particular issue. Sometimes it can be effectively if they've been obstinate or obstreperous in relation to the, the claim uh that can result in the court bearing that environment to exercises discretion as to whether it allows uh the cost of uh their conduct, whether the claims have succeeded in the whole or in part. And the issues of any adverse impact on that conduct obviously should be highlighted to the clients at the, at the outset, they should be aware, their conduct can actually influence uh the court's discretion in relation to the costs that they're awarded, right? Take a deep breath just in relation to quos qualify one way cost shifting, uh and how this applies. So it's applicable in all personal injury cases and that includes clinical negligence. If it's a nonperson injury case, don't worry about quo quacks won't apply. So it's only um personal injury cases where qu is relevant definition of quack is, the claimant will not have to pay the defendant's costs if the claim fails, but the defendant will have to pay the claimant's costs if the claim succeeds. So that gives an element of confidence to a claimant who's pursuing uh their claim and knows that if ultimately, that claim isn't successful, they're not going to face a, a large cost bill on the defendant in having to defend that claim to, to conclusion. And of course, if the claim is successful, they recover their costs from uh the defendant as the losing party. Now that uh application of qu we've seen um and looked at this in relation to funding and whether does it potentially reduce the need to purchase after the event insurance premiums to actually support the nature of a conditional fee agreement with your clients? Generally not. Of course, because as we've seen, you still have risks when cos won't apply all the exceptions behind that and that will be protected by the after the event insurance uh premium. There are exceptions to um what the exceptions are where the claim is uh found to be fundamentally dishonest whether the claim is for the financial benefit of another. So for example, uh credit high as a good example of that where the claim has been struck out, but the claim discloses no reasonable cause of action. So when you're bringing a claim, even though you think on, on the claimants, if I lose them, there's no risk of paying the defendant's costs. However, there still has to be a reasonable cause of action there. You can't just try it on with any case and things and think that quo applies. There's no risk involved there with the claims and abuse of the court's process. There are exceptions as well in relation to how part 36 applies in relation to qu which we'll look at in a bit more detail on that. So how does quos work then? So the rules permit cost orders to be made and enforced against claimants, but only to the extent that those costs do not exceed the total damages that the claimant recovers. I'll explain that in a little bit more detail in a moment. So orders are costs made against a claimant may only be enforced after the proceedings have been concluded and the costs have been assessed or agreed. Right? So what that means is when we're dealing with a claim where qu supplies, then in essence, what happens is you have to wait to the full conclusion of the claim before we consider the impact of quos and how that works. Now important. Um rule there, as you said is that um cost orders to be made in force against claimants, but only to the extent those costs don't exceed the total damages, the claimant recovers. So how that would work is if maybe during the course of um the litigation, you as the claimant have made an application. Um So let say for an interim payment for our argument's sake and that application was unsuccessful. And as a result of that application being successful, then uh costs follow the event. So the loser uh will pay the winner's cost. That's the general rule in relation to the whole totality of litigation following a trial. But also it works the same way when we're looking at applications as well. And that example, payment makes the application for interim payments that's unsuccessful because the defendant opposes it successfully. The defendant then says, well, we incur costs in opposing this application, we've been successful. Therefore, our costs uh require paying an assessment how it will work following a uh an interim application hearing is as a summary assessment of those costs. So the defendants will file what's called an N 260 statement of cost which sets out the costs. They wish to claim. The court will look at those, consider the nature of the application, the work involved and assess them. So it's done basically on a just a provisional basis. So the court will look at the schedule and say, ok, 0 2500 has been claimed. It's a little excessive here there here. Therefore, um the defendant is awarded 1500 pounds. So there's 1000 pounds knocked off the, the claim made. How Quas work in that situation is those costs will not be payable. Normally, those costs are payable within 14 days. That's how the usual rules work in relation to adverse costs orders. But when we've got Quas applying, they're not payable at that point. But you have to wait until conclusion of the claim before you look in relation to the liability for those costs. So the cost rules uh in relation to quarks are that the defendant's right to costs cannot exceed the amount awarded to the claimant by way of damages. So if we look at that example, um which I just gave in relation to the interim application, let's say, for argument's sake, we get through to a triumph and the defendant um is awarded, I don't know, 1250 pounds at whatever reason, something goes awry in relation to the evidence. So what will happen is the defendant will then say, well, we've got a costs order here for 1500 pounds. But because quo supplies, what that means is that the defendant's ability to recover their costs is limited to the claimant's award, which basically means they only be able to recover 1250 pounds of those 1500 pounds as assessed. Ok? Because the claimant has been awarded 1250. And that's always going to be the maximum liability the claimant has for the defendant's costs. The idea and the thought process behind it when we're looking at the box is that the claimant can walk away with zero but never walk away with a minus figure. If we play it. Another way, say for argument's sake, the claimant recovers, I don't know, 11,500 pounds by way of damages. The defendant uh has his cost order of 1500 pounds. That's fine. Basically, the claimant has recovered 11,500 then we've got the 1500 so that the aggregate sum in relation to the damages is weigh in excess of those costs. So the defendant can recover their costs in full as they had been uh awarded earlier. That's the uh first application how costs works in relation to uh the extent of these costs orders. So um that's a general application in relation to you've got a cost order that somehow follows you even normally funding an application. What about part 36 offers? And if we look at part 36 offers um at a later stage in relation to the benefits and detriments of them and the ramifications if you fail to beat or an uh an offer that's been made by a defendant, how it works in relation to part 36 offers is the same way the same principle uh applies in relation to that liability. So I don't want to go through part 36 in a great deal of detail. Cos we, we see that in a later film, but how it works is the defendant makes an offer. There's a relevant period there, the offers outstanding for 21 days and after the end of that period, the general rule is if the claimant fails to beat that offer, the defendant is entitled to their costs on the standard basis from the 22nd day to the end of that relevant period up until the point um, that it's accepted or uh we have uh a final adjudication there, a trial. So in that situation, say, for argument's sake, the defendant offers 10,000 pounds and then the matter proceeds to trial and the claimant is awarded 9000 pounds. First thing the defendant is going to do is request their cost payable from the 22nd day. Um, through to the conclusion of the matter, those costs at the um trial will then be assessed by the court. Cos that's the important thing. The costs need to be assessed first in relation to the liability. Before we look at the application of quos say if those costs are uh assessed at 10,000 pounds, what we're aware of, of course, in that situation is the claimant has been awarded 9000 pounds even though the costs are assessed at 10,000 pounds. The defendant's right uh to recover costs is limited to the 9000 pounds. It can never recover more than the claimant has been awarded for their damages including interest. Ok. However, of course, if the claimant, uh if the costs are assessed at 5000 pounds, we know the claimant's recovered uh been ordered 9000 pounds and of course, at 5000 pounds is recoverable in full. So what we're looking at there is whether or not it's a cost implication following a successful part 36 offer or whether it's as a result of costs orders throughout the course of litigation, the defendant's right to cost is limited to the award made uh for the claimants. So that's important provision in relation to quos things get a little bit more complicated when it comes to fundamental, um, dishonesty. Fundamental dishonesty is that element where the claimant is not exaggerated or done something in relation to their claim, which means they've been untruthful. So there's a finding of what's called fundamental dishonesty at the, at the trial, if you think about fundamental dishonesty in two ways, one where the fundamental dishonesty is, um, one discrete aspect of the claim that's been brought. And the other way, we've got fundamental dishonesty as a whole. The fundamental dishonesty as a whole issue is probably easier. So what you're looking at there is where we've got a staged accident. So where effectively the claimant of the defendant, uh, maybe they've been involved in the same incidents, the claimants intended for the accident to occur just to recover damages or another one who is quite common is fom passengers where we've got, uh, claimants and defendants, um, don't know each other involved in a vehicle incident. And then after the accident, uh, that we get a plethora of claims for alleged passengers in the claimant's vehicle. And the defendant says there's only one person in there, only one person in that vehicle and not all these other people. So what's happened is the claimant's got his mates on board to say, pretend you're in the car, Phantom passenger, you get yourself some uh, money for damages. That's because the nature of the fundamental dishonesty is as a whole. It's in essence, it's a fraudulent claim. Then there's no uh limitation in relation to the cox. Uh, the, the costs cocks doesn't apply in that sense. So what you're looking at is in essence that if that claim then fails, then because it's an exception and fundamental dishonesty, the defendant will be entitled to their costs in full. No limitation in relation to that. The limitation in relation to fundamental dishonesty over one discrete issue gets a little bit complicated. So if we had a situation, say for argument's sake, where we have a claimant who's pursuing a claim for personal injury. And on top of that, they're pursuing a claim for gardening. They're saying because of the nature of their back injury in the road traffic accident, they couldn't mow the lawn, they had to employ a gardener. And then at trial, it comes out that the claimant lives in a, uh, a second floor flat hasn't got a garden that's all got a window box at best. So the gardening claim is a complete, uh, complete fake. And so for this element, so that is fundamentally dishonest because it doesn't exist, the claims only making it up. So, you know, to get an increased amount of damages, however, on, uh, what you have to bear in mind, of course, is there is a viable claimer, the claimant was injured in the accident. So how fundamentally uh fundamental dishonesty works there. So even though the claimant had a genuine claim, which was the injury duty accidents, because he's had this element uh, of fundamental dishonesty. So effectively made up this, this gardening claim, the claimant lose completely and we'll get zero. And that's how it works. The element of fundamental dishonesty, even it's over one discrete issue doesn't mean needs to be over the whole of the loss could be one discrete issue. An element of fundamental dishonesty means the claimant gets zero covers nothing by way of damages. How quo works in that situation is a bit of a, uh, an extra kick to the, the teeth of the claimant is that the court will then go on to make an assessment, uh, an assessment in relation to had the claimant not been fundamentally dishonest, what would they have been entitled to? So, in this situation that given you, we've got the injury and we've got the gardening. So when we look at the injury, if the court thinks well based upon the medical evidence and what we've heard, the claimant would have been entitled to 10,000 pots for that injury. Of course, the claimant gets zero because of the elements of fundamental dishonesty. What will happen then is the defendant will say, ok. Right. Um Quacks fundamentally is honesty. Would like our costs assessed, please. So what happens is those costs are then assessed exactly like you would do following the part 36 following any of the elements we've looked at before with quacks. So then the developer will be awarded their cost once assessed, let's say for arguments sake, those costs are assessed of 15 pounds and pounds. What can happen is the sum which would have been awarded to the claimant, had he not been fundamentally dishonest is deducted from the sum of money awarded to the defendant for their costs. In essence, that fundamental dishonesty means the defendant has made a saving in relation to a genuine element of the claim that's been brought and effective. You recognize that that genuine element is deducted from the defendant's right to costs. So that example I gave you, uh, the court says that the claimants would have been awarded 10,000 pounds for their injury. We've got the defendant's costs assessed at 15,000 pounds, that 10,000 pounds is deducted from the 15,000 pounds which leaves 5000 pounds as a balance which the defendant can then pursue as against the claimant and or his insurers. Sometimes it doesn't work out that way and that a defendant ends up with nothing. So for argument's sake, if the claimant's cost, uh, damages were to be assessed, like I said, at 10,000 pounds. And when the defendant has their costs assessed, that also equals 10,000 pounds, they don't get any costs but effectively the damages would obliterate um the the cost that um could have been sought, right? So that's how quarks works. It can get a little bit um complex I accept. But just if you try and imagine there's different elements involved and think of trying the fundamental principle in relation to one's not involved in fundamental dishonesty where the idea is, the claimant can walk away with zero because the aggregate damages award uh but will never walk away with a minus sum, right? Taking costs a little bit. Um Further now, be aware of the indemnity principle, the indemnity indemnity principle is where the winning party cannot recover more from their opponent than he's paid to his legal representatives. So the idea there is without a valid retainer, there's no right for the client to have a liability to cost and no right to pursue a claim for costs. We saw with um funding the previous film in relation to how the indemnity principle works. Of course, that if you had a damages based agreement, which says that the um claimant is liable for 20 25% of his damages, that's the uh limitation on the cost he held to his solicitors. And that basically means that 25% of the claimant's damages is the maximum that the solicitors can pursue again as against the defendant because of the nature of that funding agreements in place. That's the application, the indemnity principle. You're also aware of the basis of assessment of costs. There are two basis for assessment standard basis and the indemnity basis. So standard basis is a general basis. The is the default position in relation to how costs are assessed. So what the rules are in relation to that only proportionate costs are allowed and any doubt in relation to those costs is resolved in the paying parties favors the party paying the costs, indemnity. Uh basis actually sweeps that about a it in relation to the fact that proportionality isn't taken into account. And also any doubt is resolved in the receiving party's favor. That's the indemnity basis. Either way the costs need to have been reasonably incurred, you can't avoid that. That's always the, the, um, what position, um, generally standard basis is the normal order. You'd have, you see indemnity basis orders when you're looking at elements of punishment. So almost when you're looking at a punitive award for costs, that could be basically on the grounds that the, uh, claimant takes issue with something the defendant has done or hasn't done during the court litigation and argues for the fact that the cost should be on an indemnity basis to show the court's dissatisfaction with the defendant's conduct just as an example. And of course, with part 36 offers, if the claimants have been successful in, uh, beating that part 36 offer, they were entitled to cost on the indemnity basis. But we'll see that when we look at part 36 and offers separately in a different film. So in deciding the amount of costs, the court will take into account lots of um different issues, conduct pre and post issue um efforts made. With regards to alternative dispute resolution. We look at that specifically in the Tahi dispute resolution film. Uh the amount of money or property involved uh importance of the matter to the parties, complexity, the skill effort, specialized knowledge and responsibility involved the time spent the work done on the file uh where the work was done and also any app uh approved or agreed budgets. We we'll look at budgeting in a moment in in relation to what that is as a separate set of rules with regards to how um the court looks at the future management of costs during the course of litigation. Uh The mere fact that the costs have been necessarily incurred doesn't make them proportionate, disproportionate costs will not be allowed even if they have been necessarily incurred. Uh The rules defined proportionate costs in that they should bear a reasonable relationship to the songs at issue, the value of any non monetary relief, any complexity and the additional work generated by the conduct of the paying party portions as you'll see throughout and dispute resolutions are really, really key and core elements, not just in relation to cost but also in relation to uh elements of uh what experts you're allowed to instruct how the case is progressed and the court allows the case to be progressed and case managed. So budgeting important elements. So all multi track cases are budgeted and it's the way the court controls the uh future costs of the claim, how it works is that at the point when costs are budgeted, uh the court will look at different elements involved in the budgeting process. And when I say different elements, different phases of the course of litigation phases, like disclosure, expert evidence, witness evidence, and what each party will do is produce down what sums of money they would like to spend within that given phase and what the court does is look to the future costs. So there's stuff that the costs have been incurred to date. The court won't look at it doesn't matter uh in, in the budgeting phases. Of course, it matters at conclusion when the costs are assessed and the court will look at the future um costs. The purpose of these budgets uh is the parties would exchange them and try and agree them prior to any ca uh cost and case management conference. And it's the CCM CS where the court will look in relation to the budgets themselves and what order to make. Uh sometimes even if the parties do agree, um the budgets, the courts can still get involved. Although you tend to see if the parties are in agreement, the courts tend not to get involved in relation to the the, the budgeting exercise. So the budget itself is on uh a form called a precedent. H I'd be aware of the different forms. Um I think the more common form is president A H, that's your cost budget. There's also a President R and a precedent. T I'll let you know what those are uh as we go through these slides and uh throughout this film. Um but I think uh they're not an end, but I think it's worthwhile being aware. Recognizing the, the terminology, I'm not sure if sqe would use just the term budget or they'd use a specific form, the present age form, you complete this present age form. And the idea behind it is say, for argument's sake in each phase, let's look at disclosure. You as the, the claimants uh will say I'd like 20 hours um for uh time for future time spending on disclosure, you then get to uh back and forth with the defendant who may say I'll give you five hours or agree. Five hours. You disagree. Goes to the court of the CC MC. Could we look at matters, consider the issues, consider work done to date? I mean, how much work have you done on disclosure already? And then they'll give you an order. Uh It may be the fact that they go 20 hours is fine. You can have 20 hours or alternatively, no, you, you can have 15 hours. What that means then is, um it doesn't mean it means you stop at 15 hours can do no more work in relation to the element of disclosure. It means that your cost recovery is limited. So anything up to 15 hours, you're fine, you'll be able to recover the cost in relation to disclosure on that. Anything over and above that is dead time. You won't be able to recover that as part of the uh the cost process at conclusion. So, um as I said before you exchange these budgets, of course, if you're a litigant in person, you still need to give the litigants in person the budget if you're a legal representative, but the litigants in person don't do that because this is legal representatives costs two rules uh to be aware of. Um And it's very important to understand this is when your budget needs to be, when your present h needs to be served and filed. So where the stated value of the claim and platform is less than 50,000 pounds, your budget, your press mh has to go with your directions questionnaire. Uh Any other case or the case is worth �50,000 or above. Uh It has to be not later than 21 days before the CC MC. The cost and case management here and be aware of that. Um We're looking really to be sanctions in relation to what happens if you don't do that when we have um budgets then exchanged uh what you also have is within seven days of the, the listed hearing the CC MC. The parties have to follow what's called a budget discussion report. It's a precedent R, in essence, the President R, if you think of it this way is a bit like a defense to the budget. So what we happen is, you know, if you act for the defendants, you will get the claimant's precedent. H have a look at each of the phases and what they're claiming and then you'll respond formally on this precedent. R so on that disclosure example, and claimant says we've got 20 hours, please use the defendant go back and say five hours but justify it saying for, for, for example, they've already spent 20 hours so far um prior to litigation or it's not a particularly complex case, the majority disclosure has taken place or disclosure is limited down to quantum only. So liability isn't an issue, whatever arguments you want to raise and you set those out upon President H President R sorry. And then what happens is when the court comes to assess um the, the costs and, and uh what is allowed by any party to be recovered as part of the budgeting process. The court will have regard to both the present and the present RS which have been completed. Uh Every budget must be dated, it has to be verified by a statement to truth as well. There is a sanction if you don't file your budget on time. So we saw that earlier where it's um, less than 50 K with your directions questionnaire, uh 50 K or more at least 21 days before the CC MC. If you don't file your budget within those parameters, you find it late, then the sanction which applies automatically is that your um, costs, um, budgeted will be limited to future court fees only. That basically means the only cost you're entitled to recover will be court fees. That's a sanction. Uh We'll see later on in these films when we look at specific applications, what happens in relation to sanctions and how you avoid a sanction. But in essence, what you need to do in that situation is make an application for something called relief from sanctions. If that applies. The idea being is you accept there's a sanction that applies, you want to avoid the application of that sanction. So you make this application to court if 84 on your sword apologize and get the court's permission to rely on the budget without that sanction applying. So we have these cost management orders. So the CMO uh is the court order as to the sums the parties may recover during the course of the uh litigation based upon the budgets they filed. If the party's costs exceed the sum allowed under the budget, then the onus is on the party to seek approval of a revised budget uh to add to the confusion, the revised budget for the additional costs over and above that, that's previously been agreed is a presidency. So President H is a cost budget. President R is your response to your opponent's cost budget. And if you want to get more costs then to vary the budget that's been agreed, then president see that additional claim for further costs. Um Generally speaking, it's tough. Um and even if you go outside of the budget, you're not gonna get anywhere with it. The only time when you're gonna be successful in relation to uh uh asking for further costs on top of what has already been budgeted is whether there's been a significant change in circumstance. So arguably that could arise out of some medical complications. Maybe the claimant's condition has deteriorated significantly in a personal injury claim. Um It could be where the defendant serve surveillance evidence upon you. So therefore you need to respond to that surveillance evidence. Uh speak to the experts draft expert evidence, draft a witness statement in response things that weren't foreseen at the time that the budgeting exercise took place, uh approved budgets, the idea behind them, it gives the parties less scope to challenge costs. So it comes to conclusion when you're looking at claiming your costs and if you have been allowed 15 hours for disclosure and within that phase, but of cost, when you set out what your totality of your claim for costs is following settlement of the matter, you say 14 hours under the disclosure um umbrella, so to speak. Um, there's no argument there. You've been allowed 15 hours, you've incurred 14 hours, that's it done and dusted. Um There's no argument to be raised in relation to that or certainly the defendant are not going to get anywhere at all. You're trying to raise an argument that you've spent less than what you've been budgeted to um uh to a group. Um Again, the court shouldn't depart from the budget uh without good reason. So for argument's sake, if you are limited to 15 hours, doesn't stop you trying to claim 20 hours um for the disclosure phase for argument's sake, but you're not gonna recover the additional five hours. And again, the court won't depart from that ordered budget approved budget without good reason. Be aware of um wasted costs. There are different elements uh in themselves. So different from indemnity basis costs, but they are looked at as a punitive um cost order. They're cost orders where the conduct of the legal representative has been shown to be improper, unreasonable or negligence. Uh And the above finding of a wasted costs order uh results in the legal representative paying his own client's costs of those the opposing party. What we're looking at there is where there's been an error made by the legal representative is their conduct which has caused some additional cost to be incurred. Therefore, a wasted costs order is appropriate. But the uh, elements of a wasted costs order means that the um, claimants will the defendant, however, it is, won't be able to go back to the fund. They won't be able to go back to the before the event insure and say, look, we're going to add this costs order here. Can you play it? Pay it, please? It's a wasted costs order. It's due to conduct. So, therefore, it's just uh, a fee that's a cost that the firm in question will just have to suck up uh and write off the burden in relation to a wasted costs. Order rests with the applicant. So if you are the defendant, you're unhappy with the claimant's conduct, you want to wasted costs order. The burden is with you to prove that a wasted costs order is appropriate factors to be considered in relation to that application. The legal representative must have acted improperly unreasonably or negligently, their conduct must have caused the party to incur unnecessary costs and it must be just to make the order just as a, a pause there. We're gonna see that word just come up now with regards to security for costs and with regards to non-party costs, orders as well. So just park that and just um firm that up in your mind. The word just is very relevant for the next three different types of um of costs orders. Um If a wasted cost order is made, then the legal representative has to notify the client within seven days of the date they received notice of that order. Next, we have um security for costs. So an order for security for costs protects a party after the defendant uh against the risk that they'll win at trial and be awarded that costs. But then they're not able to enforce a costs order against the other losing party either within the jurisdiction or abroad. So the defendant has got concerns that uh when the claim is brought against them, if they are successful in defeating that claim, and then they are entitled to their cost because the loser pays the winner's costs. The claimant has no money um, to pay those costs. The order for security to be given if complied with will provide a fund available within the jurisdiction against which the party usually the defendants who obtain the security order can then enforce any costs order. The idea is the, uh if successful, the claim would, will set aside a sum of money there. In essence, if they are unsuccessful in the claim, then the defendant can dip into that with regards to their costs. The idea is the defendant will proceed with the litigation. Happy to know they've got security for costs. So if things go the way they anticipate they're going to go and they're successful, they can claim their costs from that fund. The claim may be stayed. Uh And so it can't continue until the security is provided. So if the um application for security for costs is successful, there's a stay on it until that claimant has provided that security for costs uh with any application, uh an application for security of costs must be supported by written evidence. Um where the court makes an order for security for costs, it determines the amount of the security and directs the manner in which and by when the security must be given, usually a, a sum paid into court. And obviously look at the sum involved in relation to that. When looking at the sum involved, of course, the defendant will make representations in relation to what their likely costs are going to be in pursuing the matter to conclusion assuming of course they are successful and the claimant's claim is defeated and that's the sum that we're looking for in relation to that security. The court may make an order for security for costs if it's satisfied having regard to all of the circumstances of the case, it is just to make an order again. That was the cost just is an important consideration here. Also, the claimant is resident out of the jurisdiction. Uh The claimant is a company or other bo uh body we incorporated inside or outside of Great Britain. Uh And there's a reason to believe it will be unable to pay the defendant's costs if ordered to do so. Or the claimant has changed their address since the claim was commenced with a view to evading the consequences of litigation or the claimant gave an incorrect address in the uh claim form itself. The claimant has taken steps in their, uh, in relation to their assets would make it difficult to enforce an order for costs against them. So what we're looking at here to justify that order is things that the claimant has done, which would be indicative of the movie hiding money avoiding any potential liability. Should they be on success for any claim that they've made, they've made? So also, uh, we have non-party costs orders. So the court has jurisdiction, um, to award the cost of litigation to be paid by a non party. Um, such an application should be given consideration if it looks as though an unsuccessful opponent does not have the funds to pay an adverse costs. Order doesn't have the funds. Maybe he doesn't have any insurance which will support the, uh, that claim cost orders made against non parties are exceptional. They're not particularly common. Um, but that simply means they're no more than slightly ordinary run of cases where parties pursue a defense claims to their own benefit at their own expense. The ultimate question like we seem to be wasted costs like we've seen for security for costs is whether in all the circumstances, it is just to make the order discretion won't be exercised against what's called pure funders. So those with no personal interest in the litigation who do not stand to benefit fit from it are not funding it as a matter of business and in no way, seek to control its course, they're classed as pure funders. So literally all they've done is fund the litigation and a step back and nothing else apart from that. However, where the non party not really funds the proceedings but substantially controls or any rates to benefit from them. Justice would ordinarily require that if the proceedings fail, they will pay the successful parties costs. So that's, that's looking at a sort of litigation funding where in some circumstances, uh a company will support the um cost of proceeding with litigation with a view that if it is successful, they'll take a substantial percentage or cut of the damages awarded. So, in that situation, because they're taking the cut of the damages, if they are, uh, if the claim is successful in the claim, they're not a mere pure funder because of course, they've got a benefit, they're seeing from that litigation, they're gonna make money from that. And it's in those circumstances when the court maybe might need to make a non-party costs order. The procedure in relation to a non party costs. Order is a two step process. Basically, the non parties added as a party to the proceedings for the purposes of costs only. And the non non party must be given an opportunity to attend a hearing at which or, or consider the matter further. Right. Let's try a uh a question in relation to this area. She acts on behalf of the claimant in a claim for breach of contract. The claim total is 100 and 50,000 pounds and has been allocated to the multi track. The defendant is a litigant in person. AC C MC has been listed for the 20th of April on the sixth of April. The claimant filed and served a president H. The claimant did not file a president R. What is the likely cross budget? In order at the CC MC A, the party's cost budgets will be considered at the C MC and the order will uh sorry and the court will order the sums that may be recovered by each party in the respective phases claimed upon the president hb that the claimant's claim for costs is limited to court fees only c that the claimant's claim for future costs is limited to court fees only d the claimant's cost budget will be considered at the C MC and the court will order the sums that may be recovered by the claimants in the respective phases claimed upon the president H and A that the claimant's claim for future costs is limited to court fees only as a claimant did not file a precedent r correct answer is c that the claimant's claim for future costs is limited to court fees only uh with um dispute resolution. And certainly looking at multiple choice questions. If you're given a date, likelihood you, you're given a date for a reason and that would tend to be around non-compliance or something like that. So do just pick up on dates seeing from this question, the date you're given for the CC MC and the date when you filed your president H you have to file your president h your cost budget. Uh in light of the fact that the case is worth 100 and 50,000 pounds. So it's 50,000 pounds or more. Of course, if it's less than 50,000 pounds, your present H is um filed with your directions questionnaire. But in this situation because um it's 100 and 50,000 pounds or 50 K or more, then your present H has to be filed and served uh at least 21 days before the CC MC. It wasn't um 20th of the CC MC. I think you filed it on the sixth of April. So you're late in essence and because you're late, a sanction applies and that sanction is your claim for future. Um, cost is limited to court fees only. So what about the others? Uh questions. So, uh a the party's cost budgets will be considered at the C MC. So, and the court will order the sums to be recovered by each party in their respective phases claimed upon the President H. That's um incorrect. Obviously, because effectively we've got this um sanction which is applied because of the late filing service of the president H but also that's also wrong because it refers to the parties. And as we know, we've got a litigant in person here. So the only party who's actually filing the president H is the claimant in this action. Uh B the claimant's claim for costs is limited to court fees only that's incorrect because it's, the future cost is limited to court fees only, not all of the costs, just watch the wording there. Um D the claimant's cost budget will be considered AC MC and the court will order the sums that may be recovered by the claimant in their respective phases claimed upon the president H. That's correct if you'd served it on time. Uh That's the usual order that you um get, um, however, you were later serving it. Hence, that's why c is the correct answer. And either the claimant's claim for future costs is limited to court fees only as the claimant didn't file a precedent are a present are, which is a response to the, uh the cost budget is the president H and the failure to file that which has the sanction. But also if you're the claimants with the litigant in person, you will not be filing the president R because the litigant in person won't file the president, H won't file a budget. So therefore, there's nothing for you to respond to in relation to that. Brilliant. Thank you very much.

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Part 3 - Webinar

00:22:01

Hello, my name is Darren Hackley Green and this is filmed three in the series of district resolution films for the SQ A. This film deals with the element of costs assessment. Uh and the formal procedure really when you have a claim for costs and that claim needs to be assessed in uh by the court because your parties can't agree. So um if a sum of cost of parties lie before, can't be agreed, then we need a formal process or procedure for assessment of the same that needs to be undertaken. When we look at costs, we use um different terminology. We use the terminology, paying party and receiving party. You've seen that terminology before. When we looked at the basis of assessment, we talked about standard basis and indemnity basis. So paying party and receiving party, the terminology used we can be looking at, we are looking at uh different procedures and processing uh processes involved in this assessment process. Summary assessments, detailed assessments which incorporates provision assessments and the part eight process. So summary assessment is in essence a of a simplified um way of assessing costs occurs on one of two occasions, either occurs following an application hearing. So your costs, if you've been successful in an application hearing will be summarily assessed. So the sum of money you're entitled to as a result of being successful on that application will be ordered by the court following a summary assessment after the application hearing itself. Also, um you have summary assessment at the end of a one day fast or intermediate track trial. Reason for that is the nature of the claims themselves being limited, but also a lot of them because of the fact that those costs are fixed. So it's easy enough to do and undertake the assessment process on a summary basis. And the process is intended to be brief and doesn't involve a lengthy consideration of each of the items which has been claimed. And once assessed, generally, the costs are payable within a 14 day period. How you do it is you um detail your costs within what's called an N 260 statement of cost. You probably don't need to know the, the name of the form itself, but be aware of the fact, it's either called a statement of costs or a schedule of costs that the terms are using to change. A like um depending on when you're gonna have your costs assessed, depends on when you file your N 260 your statement of costs. So if it's following a trial, it's a fast intermediate trial, you have to file it at least two days before the trial. If it's at an application hearing, at least 24 hours before the application hearing, if you're late, what happens? Generally speaking, I think, uh, you're not gonna be denied a right to claim for costs because you're, you're late with getting your, um, sent to costs filed at court. However, the court can take that into account in relation to conduct with regards to their discretion and what they allow you as part of your right to recover costs under the summary process. And the N 260 standard costs must be signed by a, the owner confirming the indemnity principle has not been breached ie effectively. That's the indemnity principle, but you can only recover from your opponents what your client is actually liable for. So that's summary uh assessment, we may have the element of detailed assessment. So that procedure involves uh as it says on the tin, a detailed examination of a party's costs in a separate action. After conclusion of the, the main action at the end of a trial, the rules permits the uh court to order the pa uh paying party to pay an interim as against the receiving party costs. Also, that can form part of the cost assessment procedure itself. So the court can order that also the receiving party can make an application for a uh to request an interim payment on account of costs. Um the benefit to the paying party in relation to why they'd want to make an interim payment on account of costs. Is it keeps interest low? So for argument's sake, if you, the claim for costs totals around about 100,000 pounds. If the defendant pays an interim payment very early stage of 50,000 pounds, then the interest is only calculated on half of the summit's claim only on the 50,000 pounds which is outstanding. So it benefits the defendants in doing that. If there are no, they're gonna be liable for at least that sum of money by way of costs, then they might as well pay that as an interim of interim parents as well help. Um Claimant solicitors firms, any of those who do personal injury work and sort of manage their sort of overheads and so on because you get a regular sum of money coming through, you're not having to wait until conclusion when the costs have been assessed before you get a sum of money in relation to that claim. So what is the pre formal procedure? So you draft a bill of costs usually that's undertaken by cost draftsman who are employed by you to do that, that sets out a chronological list of the steps undertaken in the case under the summary of the work involved. And if it is a case which has been budgeted, and we looked at budgets in the previous film, film two, then we need what's called a phased bill of costs and the reason for that is it will set, set out all the work uh undertaken in any given phase to ensure that you've come within the phase uh involved. So for disclosure, if you've been allowed 15 hours, then when the phased bill of cost is drafted, arguably it should fall within that time. If it doesn't, just basically means you're not gonna recover more than 15 hours worth of work. That's the the purpose of budgeting. Um Negotiation of course is attempted. That was we're looking at here in relation to these procedures. All these steps it takes are the preform procedure. The formal procedure where you're going to list the matter for a hearing of court. Negotiation is attempted at every stage obviously to try and reach a conclusion without the need to take further steps throughout the course of the the cost matter. And also be aware that part 36 offers apply to the cost assessment procedures as well. We look at the implications of part 36 offers and how that works in a in a later film. So there are two ways to proceed in relation to the detailed assessment process and they're based upon the value value of the claim for costs. So if you've got costs in excess of 75,000 pounds, um then it's a detailed assessment hearing. Uh if your costs worth �75,000 or less, then it's a provisional assessment. Now sure, lets confuse matters and both detailed and provisional assessments are types of detailed assessments uh themselves, but just look at the difference there when the claim for costs is worth 75 K or less, it goes through a provisional assessment. We'll look at the process for that in a moment in excess of 75 K and it's a detailed assessment that um occurs. So the procedure in relation to what happens is the same, no matter whether you're going for detailed assessments or provisional uh assessments, the procedure is exactly the same all the way through to the point when you request um a hearing. So formally you get in the court involved in matters. That's when the, the procedure splits in relation to whether you go for detailed assessment or provisional assessment. So in order to commence uh cost proceedings, what you do is you serve what's called a notice of commencement on an N 252, you serve your bill of costs, you serve your disbursement vouchers, such the fee ns in support of your disbursements. Um And of course, any phased bill of costs, if it, if it is a budgeted matter important um process here, and you're starting the formal procedure here, but you're not involving the court at any stage, it's only served. You're not finding these documents at all. The court doesn't get involved until it's time to request a hearing. Um And no fee is payable as our fee is only payable. What's request a hearing. So once you've commenced that formal procedure and don't forget, the informal procedure is literally, here's the bill and we have some offers if that fails. Right then. Now here's the bill with an N 252, the notice of commencement. Now there are formal steps that are required here and in some ways, the, the cost assessment procedure is quite similar to litigation in itself. So, uh you know, with the formal process of the N 252 notice of commencement, that's like serving your claim form and your um your particulars of claim, the next step, which is points of dispute. It's like the defendant responding with their um with their defense. And then later on, when we go replies to the points of dispute, that's like a reply to a defense a lot. The, the state, the sort of process is quite similar to the litigation process in itself. So, um we've undertaken a formal procedure now. So the N 252 has been served next step. Then is the paying party files their points of dispute within 21 days? That period can be extended can be extended by agreement. But the 21 days is the default period that the boa dispute um sets out parts of the bill of costs agreed in the disputed um sums uh in the same order as the bill of costs itself. Generally, the points of dispute should be concise. They don't have to match uh identically each of the item claim within the bill of cost cos that just make it a massively weighty documents. It can be a general summary of matters in each different um category or it can look at specific items if there are large items involved. So for example, drafting the particulars of claim, if five hours has been claimed, then the defendant may want to, so the paying party may want to respond formally in their points of dispute saying five hours is way too much time for an experienced grade eight to draft the particulars of claim. In this case, we allow an hour and a half or whatever it may be. So that's the next step is the paying party will then um serve their points of dispute upon you. If the f uh paying party fails to serve their points of dispute within that 21 day period and fails to be an extension, then the receiving party can uh enter default. Well, it is effectively a default judgment but for costs, what you do is you request a default cost certificate and the court will then issue the court a default cost certificate if the points of dispute haven't been um served in time in response to the the formal procedure. So this is like default, um a default judgment being entered but a cost process, in essence, the sum includes interest incurred to date and also um will have to be paid within 14 days, generally, though a bit like default judgments, which you'll see in a later, a later film, uh, you can have those set aside, uh, and like a default with the default cost of it that can be set aside. There has to be good reason to do so though, generally, the fact that if the defendant has failed to diaries accordingly, that would, uh, tend to be a good enough reason. It's gen, generally, it's the most uh common reason. They just haven't diar it in time. And that's the reason why if they were awaiting instructions, that's not a good reason to not file your points of the dispute, you get an extension. So how it works. So then in response to those points of dispute, um the receiving party has an option, they can go back with replies to the points of dispute uh within 21 days, uh replies are optional. So if the points of dispute raise a significant issue, um which needs addressing and really appliers should deal with that. Say for argument's sake, the um point of dispute denial of valid retainer between the, the claimants and the solicitors. So it basically means that any claim for costs will be defeated completely in its entirety. If there's no valid retainer, that's something that's something where thee but will need to go back and respond to the points of dispute and say no, there is a valid retainer. Either here it is or it is signed on X date or whatever it may be events. So this optional in any event, then what do we do then as the next stage? So the next stage is now we've done that between the parties to trying to undertake negotiations and it's failing, we need to get the court involved in the matter. So therefore, we need to request a hearing specific form you complete um to request a hearing. There's a fee payable dependent on the value of the case and what you file. Of course, along with that request, the hearing is the bill of costs with the disbursement vouchers, any phased bill. If it's a budgeted case, the points of dispute, the replies, any budgets involved. And of course, as I said, the court thing, then what will happen depends on the claim uh for cost and the value of that. So if we have a claim, which is where the costs are in excess of 75,000 pounds, it'd be listed for a detailed assessment hearing and the receiving party will usually be ordered to lodge their complete file of papers within seven days of the date of that hearing. If it's for a paper assessment, uh which will be a provisional assessment, it's called a paper assessment. Um Then you'll also have a hearing listed. But the purpose of the listing of that hearing is it's a time when the judge uh at a particular court will sit down and consider the, the bill of costs and what is to be allowed. We'll look at that process in relation to provisional assessments. Um, now, so the idea in relation to provision assessments is the court will try and assess them within six weeks of the uh bill being filed time that try and th those timescales are going a little bit awry at the moment due to the, the way to work with the judiciary. But um, and once assess what the court does is return the bill of costs with their decisions noted upon it. So the court won't work out what the, what the pain party as a receiving party is entitled to recover by way of their costs. What the court would do is look at the bill of costs. Um, say for exa example, um that, um, example I gave earlier about the particular claim where five hours hours has been claimed and the points of dispute say no 1.5 hours because it's an experienced grade, a solicitor that you should be able to do it within that period of time. The court will look at that weigh up. The um different arguments will take a look at the particular claim, make a decision. What they'll simply do is a judge will, um, mark on the bill of costs 2.5 hours allowed for argument's sake. So 2.5 hours is allowed for that. And then what happens then that will happen throughout the whole of the bill of costs annotated, uh tends to be by, um, Po and Pence or that bill is in return to both parties. The parties then have to agree the total sum based upon the court's decisions to work out what the judge is actually allowed based upon the scribblings on that bill of costs. And either party can challenge that provisional assessment by requesting an oral hearing within 21 days of the return of the annotated bill. Uh And the rules permit the court to list the matter for a detailed assessment if it doesn't consider that vision or paper assessment is suitable. Whatever reason, it's a complex matter, it does require a lot of evaluation in relation to the issues that cook can look at it and think. No, let's get it set down for D A. Despite the limitation in relation to the the sum of the bill, they would tend only really to do that in the more complex matters and certainly where the claim for cost is around about that 75,000 pound uh limit in any events in relation to the uh detailed assessments where we have a specific hearing. In essence, this is like a trial on costs. So the parties are represented either by cost draftsman or by council court goes to each and every item on the bill of costs. The parties make submissions on each and every item and the court reaches a judgment on it. So that particular claim example, uh claimants counts will justify five hours. Defendant's counts will argue for 1.5 hours but weighs it up considers the assuming goes right. You can have 2.5 or whatever it may be. So then each and every item on that bill is effectively assessed on its merit in relation to timescales is important. So the time limit to commence the detailed uh assessment process is three months after the judgment or order giving the entitlement to cost. When I say time to commence the detailed assessment process, that's the process when you start it with the N 252, that notice of commencement. So ahead of the three months of the informal process, send the bill of cost, try and do a bit of negotiation and then the formal process is the notice of commencement which step uh sets in place. The next step which is the uh paying parties, points of dispute being due gonna do that within three months after the date. Given the entitlement to the costs, you can agree extensions of that period of time um with your opponents or by application to the court. If the deadline is missed in relation to the three months has gone by and you haven't started the the formal process, there are two different sanctions and if the receiving party starts detailed assessments after the three month period, the court may it is discretionary dissect some or all of the interest allowed upon the costs. Uh Or if the paying party is forced to make an application to compel the receiving party to start the detailed assessment process. The court may disallow some or all of the receiving party costs but also will allow uh the paying party to recover their costs of the application. They'd be forced to make because the receiving party hasn't commenced the detailed assessment process within a timely manner. There is also another deadline after that three months that you have to set the matter down for a detailed assessment within three months of the expiry of the first three month period. So literally within six months of um the judgments are already given entitlement to costs. You need to file that request for a hearing with the court. So that's yeah. So um then goes off to the other detailed assessment listing or uh provision assessment listing to confuse matters a little more. We have to then look at the costs of the costs. So the award, the cost of the detailed assessment process are usually awarded to the receiving party unless the judge feels that the detailed assessment process has been conducted unjustifiably that could be where the receiving party has just fired straight into the formal process without attempting to uh negotiate and agree based upon an informal process without the notice of commencement being served or of course, where a part 36 offer has not been beaten. So yet part 36 applies equally to cost so many matters as it does to your usual claims. The costs of the detailed assessment process are summarily assessed. Uh The receiving party provides details to the court and the paying party and they use a statement of costs in relation to this, the N 260 they're not to confuse matters. This is the same N 260 that we look at in relation to summary assessment. When we're looking at fast track and intermediate track case, when we're looking at a receiving party, claiming their costs of the cost assessment process, those costs after they've been uh assessed on a detailed basis, the cost of the costs are assessed on a summary basis. It can be a little bit confusing but that's how it works. Uh If the case settles Preiss issue and the cost cannot be agreed, then the receiving party has to issue what's called part eight proceedings. The idea here is that when you're in uh litigation, you can move forward with the usual notice of commencement to start the formal process. If you are um have you settled a case before litigation has been commenced, then you don't have the ability, you don't have a case number you can utilize for that notice of commencement. So therefore, what you need to do is issue a part, a claim for apart aid proceedings, issue that serve it upon your opponent. And once served, then you can begin the process as the usual process, which is your notice of commencement, your N 252. Because once you've got that court case number, then your usual process can follow. So just be aware if you settle prior to litigation, you need to issue a part a proceedings before you start the notice of commencement formal process in relation to the detailed assessment or provisional assessment of your uh your claim for costs. Right? Let's try uh try question in this area. So you act on behalf of a claimant in a professional negligence claim. The claim was issued but settled by way of a time. In order for the sum of 500,000 pounds, the claimants serve the bill of costs notice of commencement and disbursement vouchers on the second of April. It is now the 30th of April and you wish to move the matter forward the bill of costs totals 90,000 pounds. What should you do? A you should file a request for detailed assessment hearing as the claim for cost totals more than 75,000 pounds. B you should file a request for provisional assessment as the claim for cost totals more than 75,000 pounds C. You should issue part eight proceedings D you should apply for a default cost certificate. E you should file a request for summary assessment of your costs. B is the correct answer on this one. You should apply for a default cost certificate. So if you have a look at the time scale there, um claimants serve the bill of costs with a notice of commencement. So we know the formal process has started there. They did that on the second of April as we know that once you serve and start the formal process uh in place that the defendant. So the paying party has to file on. So it has to serve their points of dispute within 21 days. That would mean 23rd of April. It's the 30th of April that hasn't happened. So therefore you'd be entitled to apply for a default cost certificate. How about the other answers then? So uh A and B talks about starting a the formal process moving forward. You can't do that because you haven't got points of dispute as in essence to be assessed. The right procedure is of course a default cost certificate and of course, looking at why those answers, um B is also incorrect. You to file a request for provisional assessments of the claim for cost totals more than 75 K. Now that's a detailed assessment. It totals more than 75 pounds and pounds, not a provisional assessment. Um You should issue part a proceedings at sea. We know that the case was settled by way of a time in order. So we know we're in litigation. Uh Part aid proceedings is only needed where it's a Preiss issue case. Uh therefore, you need to issue part aid proceedings before you can start the formal process. And you should follow a request for summary assessment of your costs again. Not appropriate because we know the summary involved is 500,000 pounds. So it's gonna be a multi track value case, not fast track or intermediate track. So therefore it won't be a summary assessment which takes place. And in any event, the right procedure is is default cost certificate uh in light of the paying party's failure to file their points of dispute in type. Thank you very much.

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Part 4 - Webinar

00:27:38

Hi, my name is Darren Hackley Green. Uh This is film four in a series for dispute resolution on the SQE. Uh This film deals with a general introduction to the civil procedure rules. It also looks at different types of um court. So just looking at the SQE assessment criteria in this area, what we're gonna be looking at, looking at where to start proceedings, the allocation of business between the high court and the county court. And it's quite important and it's really a key area that could easily come up in the uh exam was gonna have a look at the jurisdiction of some of the uh specialist courts. There's a bit of an overlap um here as well. You note that in relation to legal systems uh separately, this also comes up as well for this few resolutions specifically as well. So looking at um sort of generally cpr fundamental objective of the CPR the civil procedural, that's the acronym is called the overriding objective. Um which is that all cases must be conducted justly fairly expeditiously, so quickly and proportionately proportionality is a massive um consideration in relation to the civil procedural litigation. Generally, there's also a fundamental expectation that parties will enter into a settle um via a form of alternative dispute resolution procedural process. We'll look at alternative dispute uh dispute resolution in a in a future video, future film. But that's very core elements of the uh expectation certainly in relation to both preaction and post action conduct. We also have reaction protocols, PAPS um which indicate the steps of best practice are expected to be taken prior to entering into litigation in certain types of cases. So generally, um not all cases have specific reaction protocols that are applied to them. But there are general, there is a general reaction protocol that covers off those sorts of um claims. But we look at that specific and we look at reaction protocols, just be aware of that terminology at this stage. The also the CPR sets out the rules and practice directions as part of the rules there. But also we have um these practice directions as said P DS, they supplement the rules and give guidance and interpretation to those rules. So often you're gonna have uh a certain rule to CPR one which is the overriding objective and there will be a practice direction to support that. It gives a little bit more guidance sometimes in relation to the compliance with the uh with the rules themselves. One fact to be aware of in general terms uh are litigants in person. Some lips, lots of acronyms ha in this film. I appreciate. So, um, lips are where you have an individual who has no legal experience or training, who's actually effectively either bringing the plane themselves. So they, the claimants or is defending the claim themselves. So they are effectively against potential legal representative. Um, you have to be very cautious when you deal with the litigants in person, certainly with regards to the code of conduct obligations upon you because it's quite easy when you're dealing with an opponent who has no legal training, you to take unfair advantage of them because of their lack of legal knowledge. But of course, by doing so, you're in breach the s or a code of conduct. Um So you need to be very mindful and cautious when you're dealing with a legal representative, the uh sorry, at least consider person, what they would say though, of course, is fundamentally, you don't owe them a duty of care. They're the opposing party to litigation. A duty you owe you owe is to your, your clients. Um But of course, we have to bear in mind our professional conduct duties. When we're dealing with litigants in person, generally just need to say you're supposed to take a step back and think about what you do and the steps you take, um you know, claiming how you progress with that claim and also have the understanding that maybe the litigants in person don't know the processes like you are trained to know them there may be things they're not aware of. They should be aware of the guidelines have been produced by uh the Bar Council Law Society and SILEX in collaboration in order to give some guidance in relation to how legal representatives should deal with litigants in person. Uh Examples of that include uh producing web links to procedural rules or give them a copy of the of the same preparing all bundles. For example, the trial bundle. If the litigants in person needs the claimant, their obligation is to prepare the trial bundle, but they may not know how they need to do that, what it should or shouldn't contain. So therefore, if you're the opponents, the defendants annually represented, you do the bundle for that individual. Despite the fact in very normally, it's their obligation to do it as the claimant giving the litigant in person sufficient time to understand material. So that would be uh agreeing extensions to directions. Um You can agree extensions to directions for 28 days. Um but maybe giving the person that period of time. So they can understand process what they need to do. If they're looking at disclosure obligations, they understand the, the steps that need to be taken, um explaining steps and time limits to them and the consequences of that breach. So for argument's sake, if you're the claimant and the litigant in person, it's the defendant if you um serve the proceedings upon them. So then we know um well as you know, for a future film. But once you serve, um, the defendant has a period of time within which to respond with either an inn of service or a defense. And that's 14 days from the deemed date of service of the claim form and particulars of claim. And if they file enow of service within that period of time, they then get 28 days from the deemed date of service to file their defense. It may be the fact that the litigant in person doesn't understand that specifically despite the fact forms serve that the response back to explain uh the steps that need to be taken. Think right in that situation where you're dealing with a litigant in person, you serve um the proceedings upon them and we get to day 15 and we've heard nothing. So no enlargement of service, no defense. Yes, you are entitled as the claimant to apply for default judgment because of that failure. But think about whether it's because the litigant in person is and uh not legally trained. That's the reason why this has slipped and why they haven't taken the steps they should be taking. And then what you need to um think about in those circumstances is how to address that. Do you give them more time in advance of that when you serve the documents? Do you give them a stark warning and say, look, you need to do XY and Z by these dates. If you don't do so, then this is what the steps we will take. This is what we will need to do uh from default judgment or whatever it may be. So, at least a litigant person is fully aware of the consequences of what uh happens if they fail to take a certain step. I think, you know, giving them the requisite forms, producing the web links, all uh all good stuff to actually help them and practical assistance to a litigating person actually may move the case through the litigation process more quickly, more efficiently, more expeditiously, which always is all in keeping with the uh the overriding objective. You seem to be aware of vulnerable parties and witnesses. We're looking, uh we look at this throughout various films in this series because the court does expect you to consider uh the nature of vulnerability at very key stages upon an issue on the claim form. When you complete your directions questionnaire, when you complete your b pretrial checklist, always need to bear in mind whether you have a vulnerable party, so vulnerable party being a claimant or the defendant, whoever you represent or maybe a witness. Uh It has an element of vulnerability. We got a practice direction um uh supports this and makes provision to how as to how the court is to give effect to the overriding objective in relation to these vulnerable parties or, or witness witnesses, a person who should be considered vulnerable. When a factor, personal situational, permanent, temporary may adversely affect that partici participation in proceedings or the nature of the evidence that they give um the court with the assistance of the parties needs to identify vulnerability at the earliest possible stage and consider whether that party's participation in the proceedings or the quality of the evidence given by them is likely to be diminished by reason of that element of vulnerability. And if so, whether they're necessary to make directions in order to further the overriding objective, as a result of that vulnerability, in particular, the court should order or consider ordering ground rules before a vulnerable witness gives evidence that to determine what directions are necessary in relation to the nature and extent of that evidence. Um And the conduct of the advocates in questions of the ground rules could include things like giving the witness more time to respond to questions. If there is maybe an element of learning difficulties for that witness, um allow them regular breaks. If there is a something that means they just may get a little bit stressed or overwhelmed by the the process itself, maybe if the witness or party does have some learning difficulties making sure the advocates are aware to phrase their questions in a way that the witness can understand. Alternatively, when they ask a question, if the witness doesn't um respond as expected because clearly they, I haven't understood the question, rephrasing the question and having the patients to do so, making sure the party is aware of that and putting those um steps in place. Vulnerability is a big um consideration now with uh a lot of cases going through the processes of litigation. So the overwriting uh objective itself um enables the court to deal with cases justly. And at a proportionate, Carson said earlier, bout is a massive consideration in relation to civil procedure rules and dispute resolution. But what is proportionate and how is that defined related to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party. That's what a generic elements of the board consideration set out within the overriding objective court of course, has to balance the proportionality with allotting um the case and appropriate share of the court's resources whilst also bearing in mind the need to allot resources to other cases. That's that balancing exercise between yes, it may be nice to have a five day trial for for this case. Um But that also would take away from the possibility of other cases which um need um time to be considered by the court. Of course, when effectively, if the court were to narrow down the issues, reduce down evidence, et cetera, et cetera, that would mean a smaller amount of time needed for the trial, say three days. So it gives another extra two days, three of those five days to be allotted to other cases. And that's the court uh applying the overall objective when they look at that case management patter. And we'll look at that in a bit more detail in a moment. Also, what has to still bear in mind the need to ensure compliance with uh what directions rules uh and orders the overall objective. Um The policies are required to help the court to further the overriding objective. Uh This implies basically a requirement for the parties and their legal representatives to cooper wherever possible. Gone are the days as the adversarial approach in relation to um litigation generally, you see a lot more co-operation now between the parties, don't you say you, you back down and give in the idea is that you speak to each other, you narrow down the issues and thinking about it. This is a key issue between us. We can't reach agreement finding. How do we deal with that being resolved by the court at a future stage? What steps need to be taken in relation to that? And clients of course, need to be advised that the access to their obligations and duties and the expectations of the court in relation to the overriding objective. The court give effect to the overrun objective. When it exercises any PAG given to it by the rules or interprets any rule. The court is required to further the overrun objective by actively managing cases. That's important, active case management without taking a passive approach to case management. The court gets involved in these things in furthering the overriding objective and actually makes directions in accordance with that. So what type of things do the uh will the court do or could the court do in order to further the overrun objective by active case management, encouraging the parties to cooper uh with each of the conduct of the proceedings, identifying issues at an early stage and how those issues can be resolved. And one of the key ones, there is the potential for uh a split trial. So a split trial and liability in quantum, what that means and what a split trial is is if you have a claim maybe arising out of vehicular incident and uh there's a dispute on liability, but maybe the claimant's involved in the claim is a very serious injured, maybe he's tetraplegic as a result of the collision. But of course, the defendant's saying it's not our responsibility. We're not liable for it. I'm very sorry to find the, the the claimant is tetraplegic, but we're not responsible for those injuries. So the thought process there in relation to a split trial, he's by actively imagine uh that case by ordering a split trial. So effectively the issue on liability is determined first and if the claim is successful, then we have further directions in relation to quantum and what medical evidence is required in order to compensate this person who's been rendered tetraplegic. Um It saves cost. So why go to the cost of actually whole trial and liability and whole trial and quantum because the quantum elements can involve several different reports from different experts. You know, looking at accommodation care and things like that and it cost an awful lot of money. Why do that? If at conclusion of a split liability trial, the claimant loses, there's no need to get that evidence if the claimant hasn't got a claim to pursue. And that's important. And that's why the court actually actively managed the uh the case by looking at things like a split trial. Let's sort out liability first because by sorting out liability, maybe we don't need further directions in relation to the quantum elements, encouraging the parties to use alternative dispute resolution procedures. If the court considers that appropriate and facilitating the use of such procedures, you'll see with alternative dispute resolution in the future film that the court can't order ad R. Uh they can only encourage that the parties embrace ad R fixing timetables will control the progression of the case. That's when setting down directions in relation to the future management of the claim. Um So making sure that that case is moved through with a quite progressive way. It's not delayed by having like elongated directions through. You've taken several years. You're moving this thing through to the litigation process as quickly as it should be uh dealing with as many aspects of the case as it can. On the same occasion, we'll see this when it comes for applications. So if we've got a listing for a cost and case management hearing, so a hearing before the court um and one party wants to make an application for say an interim payment listing. That application to be heard at the same time is that CC MC, you're before the court in relation to that case, dealing with directions, why not just deal with this application as well? At the same time, basically means you deal with all aspects of the case on the same occasion whilst you're looking at that phone and considering that claim, um deal with the case without the parties needing to attend um court, that could be by way of uh a hearing in person by telephone or by a clay video link. Uh uh So it's like a, an online platform video platform to attend a hearing or alternatively, that can be making an order without notice. So without the requiring the party's attendant that's making an order based upon one party's application only, which is fine um giving directions to ensure the trial of a case proceeds quickly and efficiently. So all different things a court can do to sort of actively manage that case, making sure there's no delays and moves through to conclusion as soon as practicable. Um This um slide is very important here when you're talking about issuing court proceedings. Um The first consideration you need to give is what court do you issue in? Um, we're looking a minute in relation to different um types of court, like commercial court and technology and construction court and so on. What we're looking at here is that distinction between county court and the high court. The two different types of court. Can you imagine, um, the high court would deal with the more complex higher value claims and the county court uh deals with every other type of claim in essence. Um There are rules that set down when you can and cannot uh issue proceedings in certain courts. So, and that's what these are and you need to be aware of these and they're very important in relation to a potential question for, for SQ A. So any claim for money may only be issued in the high court where the sum claimed is more than 100,000 pounds. Ok. So if the claim is for, I don't know, a, a debt action and the claim is for 100,000 pounds because of an unpaid invoice that has to be brought in the county court because it's not more than 100,000 pounds. If it's 100 and 50,000 pounds, then it means for, for that breach of contract claim or that debt action. And what that means is that the claimant has an option? Ok? Just because it's more than 100,000 pounds, doesn't mean to say you have to issue in the high court, you have the option. So the difference is you either if it's um 100,000 pounds or below, you can't issue in the high court full stop. If it's more than 100,000 pounds, then you have the option to do. So that's your, your choice difference in relation to personal injury cases and it's a very important distinction. So with personal injury cases, whether uh the limit is 50,000 pounds or more note the difference there, ok? So rather than more than 50,000 pounds, it's 50,000 pounds or more. Ok? So if the case is worth �40,000 you have no choice. You have to issue in the county court. If the case is worth �50,000 you have a choice. You're issuing a county court or you're issuing a high court, ok? There's no obligation there. You can't be forced to issue in one specific court for high or county court when um you're eligible to issue in either. Um but you are limited if uh um forced to issue in the county court, if you don't meet the relevant criteria, would just be other difference, ok? More than 100,000 pounds for that uh example, that debt action or 50,000 pounds or more for a personal injury claim, that person injury claim changes um in relation to clinical negligence or medical negligence claim where it needs to exceed 100,000 pounds be in the High court again, a third rule there. But note again, the change in excess of 100,000 pounds. So if you have a personal injury action following a clinical negligence claims, the negligence of a hospital or doctor or whatever it may be, and the claim is valued at �100,000 county court. That's the only place that case can go because it's not more than 100,000 pounds. Just be aware of those distinctions. The limit where you go High Court or, or county court in relation to the claim. You think about why um you go to the, the high court, a personally county court. Uh And what, what's the guidance there in relation to that? So guidance given is that a claim should be started in the High court if by reason of the financial value of the claim and the amount in dispute and or the complexity of the facts, legal issues, remedies or procedures involved and, or the importance of the outcome of the claim to the public. In general. Claimant believes the claim ought to be dealt with by a high court judge to general terms. If you've got your standard road traffic accident, nothing particularly complex. And the claim is pleaded at 75,000 pounds. Yes, you are entitled to bring that claim within the high court. Cos it's um 50 K or more, but generally speaking, you won't. Ok? Because in nature what there's nothing there, which justifies the high court dealing uh with that claim. But if the high court reading why you're issue in the high court for certain types of claim. Um, soon for injury claims, if you're dealing with someone who is maybe tetraplegic or someone who has lost a limb as a result of the accident, your high court judges will see those sort of claims quite regularly. So they're gonna understand issues in relation to the need for medical evidence. They're gonna understand the issues in relation to budgeting, which we look at. Uh, we've looked at in an earlier film, um how budgeting works in relation to that, the understanding of what these experts actually cost and the budgeting exercises undertaken correctly. The high court judges have got that experience and that knowledge. Um, it doesn't mean to say county court judges won't or don't have, I just affect the high court judges, see those cases more on a regular basis. And just because you have an individual who has lost it, him or is tetraplegic doesn't mean to say you can't bring your claim within the county court, you are entitled to do so. Um, but you may be better placed with those sort of care names to bring within the uh the high court and where the high court judges have got more experience with the sort of daily management of cases of that nature, there is the option as well. So even though you bring a claim within the High court because they say the case is worth �75,000. So you meet the requisite criteria, the courts can still transfer between themselves. So the High court may simply transfer it down to the county court. Um Basically because it doesn't, it shouldn't belong in the high. But for whatever reason matters, the court will have regard to include the financial value of the claim and the amount in dispute if their difference, uh whether it more convenient or fair for hearings including the trial to be held in some other courts, the availability of a judge specializing the type of claim in question and in particular, the availability of a specialist judging an appropriate region, specialist court where the facts, legal issues, remedies or procedures involved are simple or complex, important to the outcome of the claims of the public in general as well as facilities available to the court to which the claim is being dealt with, particularly in relation to any elements of disabilities or um vulnerabilities or special measures for any witnesses, lots of different elements to bear in mind there and that can happen both ways transferred between each of them. So it may be the fact that you have this uh tetraplegic individual and you decide to issue proceedings in the proceedings. In the county court, the county court judge, district judge may look at it and think no, this needs to be moved to the high Court in nature, in light of the nature of the injuries. This requires the high court to consider the nature of the, the claim uh and how that claim is to be managed and conversely as well. A high court judge may look at a case which is worth �75,000. I think there's no justification to clog up the high court of the case of this nature when it can be dealt with quite adequately in the county court and then moves back down that way. So the high court itself, um there are three divisions, Chancery family and the king's bench and within the Chancery and the king's bench division, there are specialist courts. So Chancery, for example, the business disputes or professional negligence, um types of cases dealt with in the King's bench, sort of case we see dealt with which are contract negligence, personal injury, nonparent and debts. Um The CPR, by the way, sealed procedure also applies equally to charity court or high court cases. There's no differentiation courses. Of course, there are specialist courts as well within uh the high court, both the Chancery and the King's bench divisions examples I've given there uh for the Chancery division, patents or the intellectual property court, the king's bench got the Admiralty court, the commercial court, technology and construction court. I'll look in a little bit more detail now, just as uh a couple of um these courts and what they deal with So for example, um the commercial court um should only, this should only be commenced there if they fulfill the, the characteristics of what's called a commercial claim. Commercial claim means any claim arising out of a transaction of trade on cr uh of trade or commerce and commerce includes any claim relating to, for example, a business document or a contract export or import of goods, barriers of goods by land, sea, air or pipeline insurance and reinsurance, banking and financial services. So what we're looking at there, an element of a commercial transaction between the parties that necessitating the involvement of the commercial court and what you'd have with the commercial court. You'd have uh barristers who are specialized in commercial work and the judges who sit in those courts will be previous commercial law specialists. So aware of the issues involved in uh in regards to commercial disputes, the Chancery division. Um you could have uh those involving special knowledge of land law, trust, intellectual property, insolvency, company law. Certain types of commercial actions will be started in Chancery Division rather than the commercial court, which is the King's Bank division. Those involve elements of land probates, trusts and intellectual property. Then we will suit you to the chance Red division. We also have the technology and construction court at that in essence is what it says on the, on the tin. Um So it's cases involved in the construction industry, the most common that you see in the TCC. Uh But many cases of those ilk involve lots of complex documentary or expert evidence. Uh And again, involve refer specialists sat within that port examples of some of the types of actions dealt with within the TCC um through building or construction disputes, engineering disputes, claims by or against engineers, architects, surveyors, accountant, other specialized advisors relating to the services, they provide relative professional negligence around those uh who I suppose in the technology and construction ares. But let's try a question in this area. Then if you're instructed on behalf of the claimants who sustained a personal injury whilst at work, you're preparing to issue the claim. The show of lost total is 40,000 pounds. You anticipate the claim for general damages will be worth in the region of 15 to 20,000 pounds. Which of the following statements, best suits where the claim should be issued. A as the claim for personal injury is in excess of 50,000 pounds. The claim may be issued in the county court or the High Court in Spanish division, B as the claim for personal injury is 50,000 pounds or more, the claim may be issued in the county court or the high court King's bench division C as the claim for personal injury is in excess of 50,000 pounds, the claim must be issued in the high court. King's bench division D as the claim for personal injury is in excess of 50,000 pounds. The claim must be issued in the county court. D as a claim for person injury is 50,000 pounds or more. The claim must be issued in the high court. Kings bench division is the correct answer. As a claim for personal injury, 50,000 pounds or more. The claim may be issued in the county court or the high court, King's bench division. Two important elements there you need to bear in mind. So the first one is that uh sum of money, 50,000 pounds or more not in excess of. So in excess of is in relation to the 100 pounds pounds limit for a clinical negligence, personal injury claim or for a monetary claim for a debt action. For example, that's when you go in excess of the personal injury limit is 50,000 pounds or more, which basically means that's why A is wrong. It says in excess of and so does C and D they say uh in excess of as well, what's also important? And second elements of um that question is because the case is worth uh more 50,000 pounds or more, it gives you the option and that's what it is. It's an option. There's no insistence just because it's uh 50,000 pounds or more, it doesn't mean to say it has to be issued in the High court. It's your choice as the individual bringing the claim which court you decide to issue in. So that's the important distinction there. So maybe issued in the county court or the high court. So, in relation to C above and D, apart from the fact that they say it's in excess of which is the, the wrong um test, they also say must be issued in the high court and must be issued in the county court. And both of those are wrong. Cos there's no insistence it is a matter of choice. And again, a although it has the limit right, 50,000 pounds or more, its sting must be issued in the high court. And again, we know that's wrong because there is an option. There may be issued in the county court or the, uh, the High Court. Thank you very much.

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Part 5 - Webinar

00:33:32

Uh My name is Darren Hackley Green and this is Film Five on the dispute resolution sqe course, uh This film is in relation to ad alternative dispute resolution. So if you just look at the SQE assessment criteria, so um what you're required to know and understand uh in goodness for the exam resource procedures and processes in more dispute resolution are specifically the characteristics of arbitration, mediation and litigation. I show an appropriate mechanism to resolve a dispute. So, AD R generates a collective description of methods of resolving disputes otherwise than through the normal trial process. It's a generic term uh utilized to any form of way of concluding a matter without the need for formal uh litigation. Ad R beware. Obviously, it's an acronym. I anticipate that you're gonna uh probably not see alternative disputes resolution pleaded in form or claimed in full in your exam, you're likely to meet the acronym uh AD R but when it stands for, so these are the uh different types of specific uh ad R that we're going to look at uh in this film. So negotiation, generally, joint settlement meetings, Js MS. Uh we looked at mediation and arbitration. We're gonna look at Medar, which is a bit of a cross between mediation and arbitration itself. We're also going to look at enes early neutral evaluation and as you can see, and as I've said before, with this resolution, lots of acronyms uh are involved and we've got some more here, Js MS and Ene as well, excuse me. So generally be aware, the court's got a duty to encourage AD R as a method of dispute resolution. That's important to be aware of when I utilize the word. Encourage the court can't force the parties to undertake any form of AD R. It's a method of encouragement. The idea. I think British parties to consider alternative dispute resolution and if the parties don't do so, there can be some elements of cross sanctions in involved in relation to that. What the court can't do is make the parties undertake any form of alternative dispute resolution. That's important. Uh There's provision um as you've seen before for district resolution, preaction protocols and every preaction pros going after the type of reaction protocol in involved um have a clause in relation to a paragraph in relation to the need to consider alternative dispute resolution. Also, when we're pro processing through litigation, you're gonna see a later film, what's called the directions questionnaire and the directions questionnaire, which is an early form which is completed once you've issued and served uh proceedings once the defendant has actually filed and served their defense. There's a specific um part of that form where the parties need to confirm that they've considered uh forms of alternative dispute resolution when we talk about um Ad R and we're looking at specific methods of um ad R alternative dispute resolution uh as well. Yeah, mediation arbitration, which we're gonna see in a moment are um specific methods as a process involved. Um But AD R in itself can just literally picking up the phone and having a conversation with your opponent. So that is a form of alternative dispute resolution. But the cheapest and easiest form of dispute resolution is having a chat with your opponent. Is there any way you can conclude um matters? And don't forget when it comes to alternative dispute resolution. Uh It need not just be in relation to the, the totality of the claim. You may have a claim where there's an argument over liability and also quantum the following a road traffic accident. Uh The conversation with regards to alternative district resolution may not resolve the elements of the quantum aspects, the conclusion of the sum that the claimant will or will not receive or may just determine the elements of liability. So an agreement is reached maybe that parties share liability on a 5050 basis. So uh ad OC can actually deal with actually um discrete issues in relation to a a claim as well. Um So generally negotiations is picking up the, the telephone or alternative correspondence, passing back and forth between the parties. Uh We're seeing later films, how formal offers are made under what's called part 36 we also have another form of offer called a called the bank offer, which is effectively um it's similar to a part 36 in a way, but without the sort of cost implications that part 36 has, but we'll look at that in uh specific detail in a later film. But again, that's for a form of negotiation. It's a form of alternative dispute resolution in a way that idea about trying to conclude matters without the need for litigation or ongoing litigation. We also have what's called a joint settlement meeting very common in personal injury. Um claims, joint settlement meetings are where the parties agree to um to meet at some point. Sometimes they can be done uh online, we saw a lot of that um following COVID generally. Now we see them more face to face. The idea behind them is the parties uh meet at a certain location. Generally, you tend to see them done at your barrister's chambers and various rooms are used. Normally. It's three rooms. What will happen is the claimant and his or her representatives, including council and solicitors will be in one room, defendant and their representatives in another room and then there's a third room which is sort of the, the midway meeting point. And what will happen is that the lawyers will go to this um, third room that the meeting room had a chat about matters with the anticipation event being the fact that they'll walk away or Warren will walk away with an offer to put to their clients. They go back, have a chat with their clients, then go back to the meeting room with further instructions and offers packs back and forth. And that's how it works. The idea and the benefit of a joint settlement meeting is it really focuses the party's uh concentration in relation to settlements. So you're there that day is attempt to be a day to hopefully conclude matters and uh and reach a settlement. That's what's expected of both parties. Clement and defendant who attends, uh bought uh bought into that. So they, they're wanting the, the same conclusion. And of course, if a conclusion is reached depending on whether it's free or post litigation, then uh an order is, uh, is drawn up to reflect that the advantages of uh sort of negotiation in these terms can be done at any time, parties can walk away at any time. There's no obligation in relation to this form of alternative resolution. You know, if it's not working well, if I've been at a joint assessment meetings before where we've gone, and the initial offer from the defendant has been relatively insulting. Um And that made me think that there's no point, what's the pointing is, you know, sitting here passing offers back and forth when the initial offer is barely 10% of what the case is worth. And obviously the other benefit is you can avoid uh litigation or ongoing litigation because then forget any form of alternative dispute resolution isn't something which is limited to Preiss issue. You can also come post issue at any point that you think it'd be relevant. Um, outcome is usually confidential and avoiding litigation or ongoing litigation, of course, can preserve the relationship between the parties. If there is an ongoing relationship there, uh disadvantages of formal joint settlement meetings, obviously they come at an additional cost because the parties are having to go to this uh joint settlement meeting itself. Generally, as I said before, these are now in person, the cost of instructing your barrister, the travel costs involved, obviously solicitors going there additional costs. But of course, you have to weigh up the fact that those additional costs save any ongoing litigation costs that have to be incurred if the matter were to proceed either to litigation or continue through uh litigation as well. So that's joint settlement meetings, mediation, a normal another uh form of a dispute resolution, what I would say in relation to mediation. We're looking at uh multiple choice questions for rescue. And um when mediation becomes relevant, mediation is probably the most important method of a dispute resolution. When the parties want to preserve an ongoing relationship. It mediation is a way really of the parties reaching a conclusion without the need for any sort of bad blood between them. So if you have a question in the SQ, which talks about maybe the parties wishing to preserve an ongoing relationship, ongoing business relationship, then I think maybe mediation might be the best way forward in relation to that scenario. So again, a as you've all forms of alternative dispute resolution, well, non determinative dispute resolution, we, we look at arbitration as a form of determinative. Um ad R we'll look at that separately in a moment but non determinative um alternative dispute resolution can take place at any time, pre or post issue uh mediation confidential. It's conducted without prejudice and it's non binding until a written agreement is reached between the parties. The idea is you go um you have this discussion about matters. I very much like a, a joint settlement meeting. Um separate rooms involved. Sometimes the mediator will see in a moment can bring the parties together in one room to talk about matters sometimes that can happen. Um But the format is very similar to a uh a joint settlement meeting. And again, because of course, it's not um it's uh non binding unless an agreement is reached and then an agreement is all it through an order, then the parties can walk away at any time. So with the uh the process you have a mediator appointed. Now, the mediator may uh be someone who has a specialist knowledge of the, the matter which is in dispute. So it could be, if it's a personal injury claim, it could be a barrister or a judge who uh who has experienced some personal injury. If it is maybe a contractual dispute in relation to dealing with, maybe some sort of uh it issue, it could be the fact that the mediator is maybe an expert in that field of um of it, the mediator doesn't need to be legally trained and that's not the purpose for them. Their purpose is to try and f uh host has helped the parties reach some sort of agreement. Um Following the discussion between them, they help the parties find common ground and that's the the purpose of them. They don't offer their opinion or give advice as to what's right or wrong. They're ready to hear everyone what they say and try and see where there are elements that can be agreed if possible. And as I said before, that means a mediator can often shuffle between the, the rooms which the parties that sat in and draw the parties into the same room if relevant, if appropriate uh at key points during the course of the mediation itself, costs of the mediator are born jointly and severally by the parties. So each party pays um so 50% of the mediator's costs, they'll also be responsible for their own costs of the mediation. So that needs to be borne in mind if you're going to agree to mediation as a form of alternative dispute resolution, and of course, what you can have as a result of a successful mediation, um one party can agree to pay the other party's costs. So for argument's sake, if the mediation results in one party, either we draw in their claim or be wholly successful in part of their claim, they may say to the other party. Well, uh in light of the fact that this result has come as uh you agreeing to the mediation and you are in essence either liable or not liable for the claim which has been um brought. Uh You should pay the costs of that and that can form part of the separate agreements which the, the mediator can help the parties uh draw that conclusion. And of course, the length of the mediation involved and the speciality of the mediator themselves determines the, the cost that can be involved that so it's of benefit of mediation. So the aim is to uh to solve problems and, and not to find fault. And this is why mediation is a uh an ideal method of alternative dispute resolution. When the parties want to have an ongoing business relationship. It also enables the parties uh to have a forum to get things off their chest. A party may not have a valid claim or a valid defense to a claim. But the fact that they've been to mediation, being able to express their views, even if those views don't result in any sort of legal claim or um, legal defense to the action which has been brought, they feel like they've been heard. So it gives them the element of satisfaction, uh, in the, in the process, it does give the equivalent to a day in court. It does give the parties the feeling that they have had some elements of justice and it gives an opportunity to hear each other uh each others case conclusion of mediation. Um So if it results in an agreed settlement, then depend on who's involved uh in the claim. So if you've got two parties who haven't got legal representatives who uh embraced mediation, then the mediator can assist in the drawing up of the order following the mediation. If the parties are legally represented and generally the legal representatives will draw up the uh the order the mediator won't get uh involved in that. It is for the, the uh legal representatives to confirm and um set out the, the relevant parts of the order uh following the agreement. Um Once signed that mediation agreement becomes binding. And if of course a party fails to adhere to that, it's a breach of that order, then the um remedy there is to issue separate court proceedings, but for breach of contract, because you've got a, a contractual agreement there signed to one party has failed to adhere to it and it results in a breach of contract basically means you, you issue fresh proceedings for a breach of that order. So arbitration is uh different in relation to other forms of alternative dispute resolution. But because it's a determinative form of ad r effectively to substitute for litigation, so just watch that in relation to any question which is uh raised in the uh SQ A. So with regards to arbitration, you don't have arbitration and then if that doesn't work off, you go to litigation, it doesn't work that way. Arbitration is the end of the, of the matter. Once it reaches a conclusion, uh litigation isn't an option after you've chosen um the, the routes of arbitration to proceed with your uh case. So be aware as well with regards to contractual disputes, a lot of contracts between the parties certainly see them in international trade contracts have what's called an arbitration clause. So that's a clause in a contract which basically states uh that once you sign the contract, if there is a dispute arising out of that contract, then the appropriate ad R is arbitration. So by signing that contract, what you the parties are agreeing to is arbitration is a form of the alternative dispute resolution. The way to resolve the claim, uh basically means the parties cannot proceed to litigation because of the nature of the arbitration clause. So you've got a uh a contractual dispute between the parties. First thing you do is turned to the um to the contract to see what has been agreed. If anything in relation to the methods of uh dispute resolution, when it comes to arbitration itself, the disputes referred to an independent arbitrator. Um And then once a decision is bind is made by the arbitrator that's final and binding arbitration is a little bit like a court process. So evidence is um gathered and presented. It is a little less formal. Um You have uh less rules like this and procedurals as you have throughout the process of litigation, it tends to be a quicker process. Um As well important thing to be aware of is that um if then following arbitration, you have a final order, if the party against whom the order is made, uh fails to adhere to that. So fails to pay the sum of money uh awarded by the arbitrator, then they uh the other party can apply to the High Court for permission to enforce the arbitration award as if it were a uh a court judgment. So then it can proceed to enforcement action. The other thing about arbitration, which is really, really important to be aware of is the limited right of appeal. And that's what makes arbitration probably one of the biggest disadvantages of arbitration that is there's only one ground of appeal. Uh And that's to the high court and that's if the arbitrator got the law wrong. OK. So the law is wrong, that's the only ground of appeal you'll see in a later film that of uh other, other elements of uh litigation itself. There are different, various grounds of appeal. So all the advantages of arbitration, it's um quicker than going to court. There's no need for litigation. Litigation is avoided. Generally, it's cheaper than litigation and that obviously it comes at its own uh cost, it's not free, it's private and confidential. It's one of the biggest advantages of arbitration and life. Obviously PCE to litigation, which generally will involve a public decision because obviously, hearings in courts are uh are public disadvantages, um again expense. So, you know, it does come at a cost but generally just bear in mind the fact that it is, you know, usually cheaper than going through the process of litigation. Parties often want to instruct their own lawyers. Of course, that comes at an additional cost as well. Uh The process can be time consuming. I, yes, so can litigation and probably less time consuming than litigation itself. The probably biggest ground which I think is uh the disadvantage of arbitration is that limited right to appeal? And there's only one ground that the arbitrator got the law wrong. That's it. Uh That's probably the biggest disadvantage in relation to arbitration. So, as well as uh mediation and arbitration, we also have sort of a halfway house, uh which is called Ned ARB. Again, you can see there, it's abbreviation of Mediation arbitration um under that form of ad R the parties agree to submit their disputes to mediation, the usual mediation, special rules there. And if that doesn't work, they then go off to arbitration. So that's the process involved. Um, they may, if they want to or what they wish and use the same person who acted as mediator as the arbitrator for the arbitration. I mean, that's assuming of course that the, um, individual, the mediator who then becomes the arbitrator doesn't become privy to any sort of confidential information which may um conflict with their independence as an arbitrator deciding. Uh ultimately what happens following the arbitration? That's a matter between the parties and the parties have the right to actually object to that mediator then becoming the arbitrator if something confidential um may end up conflicting with their independence. But the agreement is there that mediation and arbitration is the, is the way forward again, Medar can be incorporated within a uh a contract between the parties. So it's a breach of contract. And of course, you would tend to see that if the parties have a good strong ongoing relationship, then maybe the idea about mediation is a first or court before arbitration would be of benefit. Early neutral evaluation ene is the acronym there. Um The, the purpose of that obviously early neutral evaluation is something that comes at the beginning of a, a dispute. It allows the parties um to instruct their chosen neutral at the uh to provide an evaluation of maybe the matter in general or potentially a specific issue in the case, which is um holding back the potential for any form of um settlements. So the idea is there the parties submit uh in writing their case and reason in supporting documents for the uh individual to assess and consider the evaluator then makes a recommendation, a written report. Generally, it's produced, the evaluator can be a judge, uh it can be a barrister, it can be an expert so it could be that you have a dispute in relation to maybe whether there was a, a duty owed in maybe uh a specific public liability case. And so therefore you seek the opinion of a, a lawyer, barrister or a judge in relation to that specific point. And if the, the opinion comes back and if it determines there was a duty, it allows the parties then to further negotiate in relation to a case, there has been and there now is an agreement as to the fact that a duty is owned a tort has been a breach of that duty. What was the locks uh involved? You can also see with regards to experts as well. So it could be a um a claim, the uh involving uh complex it issues. Um Maybe there's a dispute in relation to the application of one process level going to an expert um to determine maybe whether uh this process was applicable to the dispute between the parties can actually sort out that issue at an early stage and actually can open up the potential for other forms of AD R. So you get that out of the way and it opens up the potential for settlement for other matters. So what you're looking at with the ene is where there's a bit of a sticking point between the parties over one central issue and the purpose of the ene is to actually uh deal with that sticking point. You can move on and think about other alternative methods of dispute resolution. Again. Uh It's a uh an early version of way of actually sorting anxiety can be fairly cheap. It comes at its own cost. Of course, you have to pay the evaluator. Um But generally speaking, it's cheaper than just cracking onto to litigation and pushing the claim through that way. So what in a summary are the benefits of um ad R? So it's relatively inexpensive compared to litigation really, it takes more than a day or two, unlike litigation where you can have protracted trials of several days, he encourages the parties to talk more freely. It's not based upon the idea of winners and losers is what you tend to see in litigation. It's more flexible than litigation. Uh Of course, litigation has a simple procedure rules. You have to add here to the different timelines, you have to be aware of it's conducted on a without prejudice basis. So it's generally confidential. It's bought into by the parties. That's the important thing there. With regards to alternative dispute resolution, no one party can be forced into alternative dispute resolution. Say for of course, the determinative version which is arbitration because if there's a, a contractual clause, uh then you've got no choice. Arbitration is the way to go. But generally speaking, other forms are of a job without this contractual clause. The parties want to and embrace the idea of alternative dispute resolution. They want to give it a go try and resolve matters. So all the parties are invested in that. Uh it's confidential in most um cases, unlike obviously, proceedings, court where things are uh means are held in open court. And of course, it promotes early settlement and that can actually uh avoid increases in costs. When you sign the level of costs award at trial, the court must have regard to the efforts made before and during the proceedings. In order to try and resolve the dispute, the court will al always consider when making any sort of costs order and utilizing their discretion in relation to costs. Have the parties undertaking any form of AD R could this trial have been avoided? Had they done? So generally, you can re um end up with an adverse cost order being made against you. If you haven't embraced any form of AD R or alternatively, you've ignored or refused uh an invitation to some form of alternative dispute resolution. So even though I've talked about the need to embrace AD R uh and the benefits of that, obviously, there are circumstances when you can quite frankly say no, it's, it's not for me. No, thank you. Um We call them the healthy principles. It follows a, a case called H as again for rescue, you need to know specific cases um for rescue the Halsey principles though, look at when it would be reasonable for you to say, well, no, um Ad R it isn't uh appropriate in any given case. All of the things you need to bear in mind, the nature of the dispute merits of the case itself. Uh for argument's sake, you may be the defendant or an action brought by the claimants and you think the claim has no prospects of success whatsoever. Um And if that's the case, why would you be interested in a formal alternative dispute resolution when you have no interest in actually agreeing? Anything the claimant um wants to bring, you simply want to proceed to trial where the claimant can have a judgment against them, they can lose um the extent to which settlement methods were attempted. So, um with regards to AD R, you may have attempted some form of settlement, maybe you've actually tried a general form of a negotiation on the phone and you've found that your opponent is obstreperous. So, you know, they refuse to negotiate over certain points and therefore you reach the conclusion that what is the point in any other form of AD L? What's the point in mediation? When your opponent's attitude to negotiation has just been um like a brick wall, whether any delay in setting up, AD R would have been prejudicial and whether AD R had reasonable prospects of um success. Also, whether the cost of AD R would be disproportionately high. Of course, ad R comes at a cost. Generally speaking, if you've got a case, maybe the dispute is only let's say 10,000 pounds and one party proposes mediation. Arguably the costs involved of that mediation, we outweigh the benefits. Uh because of the fact that the C the case is only worth a, a limited sum of money. You have to bear in that in my room looking at different forms of AD R. The fact that the case is worth that in a sense that it's worth spending the money in relation to that. Although don't forget, you have to always bear in mind that in your client's best interest where you have got may be a, a low value claim. Uh I've said 10,000 pounds relatively low value. Um but the parties want to preserve an ongoing business relationship. Well, therefore, the mediation may be disproportionate. Mediation may be a benefit because of the nature of actually that ongoing relationship between the parties. The burden is on the other party to show that the refusal is unreasonable So, um if uh you're the party who has just refused mediation, then you don't have to prove why you did that issue the party to say to the court. Look, that was unreasonable, they should have agreed to some form of AD R. Uh And that was written the additional costs involved in relation to the fact that they have refused. So, always bear in mind whether AD R is suitable, what I'd always say is never ignore a uh a request for, for AD R always respond to it. It may be the fact that you say, well, no, a ad R at this stage is too premature because we're still finalizing our medical evidence. If it's a personal injury claim or, or you still ongoing investigations are still ongoing in relation to liability in relation to breach of contract or whatever it may be either way respond. Uh So don't just ignore that invitation for AD R um and justify why you're um turning down that uh offer of AD R at this stage, it could be on a temporary basis and it will no at this stage. But once we finalize our medical evidence, then we'll, we'll consider AD R at that point or it could be effectively your um client's commercial objectives may be best achieved by litigation. In that you an example of that could be the fact that you've got a client. Maybe you sold a product to various um individuals, one individuals um claim that product is maybe not fit for purpose. You disagree with that, but of course, um ad R confidential, the, the claim goes away. But what about the other products supplied to other people? Talk may get around. You may want a clear case litigated on that point, whether your opponent loses to show that those goods are fit for purpose. Litigation may be necessary as an injunction is required. You see, we'll talk about injunctions in, in later films, but e you may want to stop a party from doing something and make them do something. Uh And therefore you need um to enter into litigation to do so. In relation to that, you don't need to enter into litigation to get an injunction. But if you um apply for an injunction before litigation, then you have to give an undertaking to the court to litigate as soon as possible. So if you are forced into litigation, public interest may require a court judgment, that's a binding precedent. But you may have a case where uh and that may be the parties want a binding pre, there's a key point here which can influence all future cases moving forward and therefore you want to take the matter through to litigation. You want some form of binding precedent to help other future cases moving forward or your client's case may be strong enough for what's called an application for summary judgment. We'll see this specifically in relation to um to applications. The summary judgment is where one party's um case uh doesn't have any prospects or reasonable prospects of success. So in essence, you may just want to force that party to proceed to litigation. So you can make this application so the case can be dismissed at a very, very early stage. That would be similar to you actually saying no to AD R because you've got no hope in relation to your case. So why would I embrace AD R when my view is there is no case to answer here. Let's try a uh a practice question in relation to this. So that's on behalf of the defendants who claim for breach of contract. The claimants is a supermarket that the defendant has done business with for years, they contracted with each other for the for the supply of a certain quota of exotic fruit per month. This fruit is imported from South Africa. The claimant claims that the latest quantity of fruit was rotten and could not be sold. The claimant alleges that the fruit was not fit for purpose and that the defendant breached the contract between them. The claims alleges a loss of quarter of a million pounds. The defendant considers a relationship with the claimant to be a very profitable one and wants to maintain it. However, the defendant disputes that the fruit was not of the usual high quality. The defendant is keen to consider AD R which of the following best suits. The defendant's position. A, the difference would be best suited to consider mediation. B, the defendant should check the contract first to see if there's an arbitration clause. If not, then the defendant would be best suited to consider mediation. See, the village should instruct their solicitors to make a part 36 offer. D the defendant should invite the claimant to arbitration. E the defendant should invite the claimant to issue court proceedings as soon as possible so that they can then proceed to mediation. B is the correct answer or your best answer in this one. So the defendant should check the contract first to see if there's an arbitration clause. If not, the defendant should be or would be best suited to consider mediation. And said before, when you have a dispute of a, like a breach of contract dispute, always think check the contract first and I say this in relation to other elements. For example, jurisdiction. OK. Jurisdiction is important a lot of the time the parties can actually um state or in the jurisdiction which um the matter uh would uh needs to be dealt with within the contract as a clause same for a ad R. So if you've got a contractual dispute, check the contract first, if there's an arbitration clause. And in this example, we know there's a uh a desire for the ongoing business relationship. So check, there's an arbitration clause if there isn't one and mediation is the best way forward because I've said before, mediation is a good way of preserving the relationship, ongoing business relationship between the parties. But if you've got an arbitration clause, that is the way, um, you're expected to, um, handle the matter, sort of about the other ones. Um, so a def, it would be best suited to consider mediation. Yeah, that could be correct in relation to mediation. Um, because of the nature of the uh desire for the ongoing business relationship. But when you've got a breach of contract, check the contract first, it has to be the, the way forward just in case there's an arbitration clause. See, the even should instruct their solicitors to make a part 36 offer generally. Um probably not the best way forward. It is an option. Uh It's not a single best answer. The reason being of course, is the fact that the parties want to preserve an ongoing relationship. Part 36 offers a quote are a formal way of making an offer and they come with cost implications. So generally not seen as the the friendliest way or an alternative dispute resolution. They put pressure on your opponent tactically. Um And that is probably not the best way forward uh based on the circumstances and the question, the defendant should invite the claimant to arbitration a again. Um That is an option. But if we're looking at the circumstances of the claim and assuming there's no arbitration clause, then maybe mediation is the better way forward to preserve that business relationship as opposed to arbitration, which is a, as I've said before, a determinative method of alternative dispute resolution and a defendant should invite their claim to issue court proceedings as soon as possible. So they can then proceed to mediation. Um So don't forget, in relation to mediation, it doesn't have to follow uh post litigation. It can be a pre litigation thing. So there's no need to issue court proceedings before you consider and proceed to mediation. Uh The same way, really proceeding through to litigation is probably not the best uh way forward in relation to, to this claim because you can try and sort things out by way of an alternative resolution. Thank. Thank you very much.

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Part 6 - Webinar

00:31:14

Hello, my name is Darren Hackley Green and this is film six and a series of films for District resolution on the SQE. Uh This film deals with the uh issue of preaction uh protocols. So let's have a look at the uh SQ assessment criteria in relation to this area. But the uh practice preemption conduct when we look at preliminary considerations, limitation of down with that in a separate film, but preemption protocols uh themselves. Also we have the practice direction in relation to the use of Welsh language um in civil proceeding. It's quite unusual um that practice direction, but it's on the SV assessment criteria. So you need to be aware of it and I'll give you information in relation to that in a uh in a moment. I think one of the most sort of important elements in relation to reaction protocols is here really. Um what happens if you don't comply with the preemption protocol, the sanctions involved in relation to that? I think for me, that's probably one of the most important areas that could be questioned in SQ in relation to this area. So our reaction protocols, they're basically um sentence in the protocols that are in place prior to litigation. Because civil procedure rules apply when you're into litigation. We have the preaction protocols that apply in any sort of conduct between the parties prior to litigation. It basically draws a line and sets out expectations between the parties in any given type of case and what you need to do. Uh with regards to that claim, um provide guidance to say how to conduct your, your case. And the idea behind compliance with corruption protocol practice is they try and resolve the matter uh without the recourse to litigation. So it promotes the element of settlements, usually by way of some form of alternative dispute resolution. There are specific types of preemption protocol dealing with different types of claims, say personal injury, professional negligence, death, disease and illness, low value, personal injury claims. We also have the general catch all um reaction protocol which is a practice direction on pre reaction conduct and protocols. It's good to be aware of that because effectively the idea is that if you have a specific protocol which applies to your case, a person injury, K you've got personal injury protocol, then you utilize that protocol. If you have a case which falls outside of any of the specific ones, then you've got the, the backup, which is the practice reaction on preaction conduct and protocol. So either way you cannot avoid a reaction protocol applying to your claim no matter what type of case, it is um this sort of um general um uh preaction protocol is sort of general guidance in relation to the the steps to be taken. But to be honest with you, all these preaction protocols, they much much the same um requirements of early notification, the developments response timelines, expectations of disclosure and AD R very similar in relation to how they are formulated perfectly frank with you important to be aware of the elements of costs. So if the parties have complied with the aims and objectives of protocol practice, but then they litigate, they can recover the costs reasonably incurred in complying with the relevant protocol. And of course, some of its proportionality, the usual cost rules apply. Of course, this is outside of the element of your cases. So it's a fixed cost like you be fast track or intermediate track claims. Um If a potential claimant decides not to pursue a claim as a result of compliance with a pre action protocol, then the cost incurred by the prospective defendant will not be recoverable. So unlike when you're in the course of litigation, the uh looted generally um, pays the winner's costs. If I if we have pre action protocol, perhaps he complied with. And the claimant then just doesn't pursue their claim because the nature of compliance with that the defendant can't then say, well, you need to pay our costs of our compliance. In essence, they've had the benefit of the fact that, that case isn't taken uh any further forward. So there's no risk to a claimant in that sense to think about. And obviously, it's, it's important to think about whether you go into litigation having complied with pro protocol practice because then the elements of the cost risk does what could apply. Depending. Of course, we've seen cases of personal injury where cocks qualify one way shifting applies. So there's no elements of a cost shift risk of the defendant's costs but not. So when it comes to elements of say a breach of contract claim or something like that, a of the protocols is generally the same, uh probably the early exchange of full information. So card on the Table approach um enables the parties to uh try to resettlement prior to having to commence litigation due to the limitation period that may be in place. Um And of course, it uh helps narrow down the issues means the uh format of litigation will be more ef efficiently managed because you've narrowed down the issues. So during Preaction Protocol practice, maybe you've agreed liability on whatever basis it may be. You don't need to argue about that during the course of litigation. Maybe during Preaction Protocol practice, you've also agreed liability. But also you've narrowed down the issues in relation to the right of medical evidence or maybe the loss of earnings claim which is brought following a, a slip at a public swimming pool, anything like that So it's basically basically narrowing down the issue to agree what you can uh when you can and possibilities may follow for those who do not reasonably comply with preemption protocols. So a party who reason fails to comply with the A is protocol practice is likely to face penalties or sanctions by the court in any subsequent litigation. This is what I was saying to you at the start. But this is, I think for me, probably one of the most important um areas to dare in mind for any question for MC Q about what the court can do by way of a sanction or what of course you need to advise your clients about. Um is that they need to do in order to comply with production Protocol practice. Court considers making such a penalty or sanction uh whatever it makes a, a case management's order or any decision in relation to costs or interest. Generally, it's usually left until the end. Um And when the court is making a final decision in relation to conduct because it impacts upon costs and they're utilizing their discretion. Then compliance with Protocol practice is borne in mind. Uh said he always consider would have cost the court would have in regard to preaction conduct as well as post action conduct uh as well important to be aware of as well. A person who knowingly makes a false statement in a preaction Protocol letter, uh other document prepared in anticipation of legal proceedings may be subject to proceedings with contempt of court. So similar sort of rules, uh you'll see apply in relation to a state to truth and a statement of case or a disclosure statement on your uh disclosure that your list of documents. So same rules applied there with the goss to contempt of court is very important in relation to the fact that it's um not obviously false evidence of truth important there. So what sanctions can apply? This is the, this is for me, the more important area. Um The court can actually stay the claim until specific steps are taken. For argument's sake. You fired into litigation. Uh With a consideration of pre protocol, the court can do is uh upon exercising a case about powers, right? Let's stop there. You're not having directions, we're gonna stay it. You can probably pre protocol practice once that's done, you can, once that's done, you can come back to, to court and we'll see what directions now float following that uh compliance with pre protocol practice. So I don't think you can avoid it because the court could actually force you um to do it if you simply fire into litigation and making an order that the party at fault pays part of all of the other part, costs making an order of that nature. But on the indemnity basis, of course, we looked before another film about the difference between a standard basis assessment and an indemnity basis, indemnity basis. Usually it's a, it's a punitive approach to cost, but you can have that for things to comply with the Pre Action Protocol practice. Uh If the party at fork successfully recovers a sum of money, they could be denied interest on that sum for either specific period, um or the whole or that interest could be reduced. So you may have a right to interest at 5%. You reduce it to 2.5 because of your failure to comply with Preaction Protocol practice. If a party at fault the defendants and they claim he's awarded a sum of money, then conversely what the court can do is order some of interest over and above that, which would have been applied up to 10% of the base rate as a way of again, of a punitive approach in relation to non compliance with Preaction Protocol practice. So we look to the consequences of um ignoring cup protocols and what can happen? No compliance with them. When is it appropriate to actually do that to ignore cup protocol practice. A couple of elements. Limitation is the first one. So if you've got a limitation date approaching, you need to comply with limitation. That's the first and foremost element. You can't simply say hang on my limitations next week. But let's start the P Protocol now and then see if it's personal injury. You have 21 days for the uh defendant to respond and then three months to investigate and then it would have investigated well then issue court proceedings. That's outside limitation. OK. Limitation comes first. So if you've just been instructed on a case and uh limitation is approaching, you don't have time to complete all of your requirements for the timelines of pre action protocol practice. You have to issue court proceedings. OK. Limitation will always come first and what you can always do of course is once you issue court proceedings, you don't need to serve straight away. Um You, um once you issue a claim form, you've got four months to serve that claim form within the jurisdiction, six months outside of the jurisdiction. So what you can do is issue it only and then comply or carry on complying with reaction Protocol practice. And if that's successful, it concludes and you can deal with the matter accordingly. Alternatively, if that doesn't work, uh then you can then serve and you, then you get into litigation. Uh Alternatively, what you can do is simply issue and serve straight away and then seek a stay whilst you observe preaction protocol practice. That's one of the options you have. And that could be when I looked at the sanctions from the court as well. It could be the fact that in this situation, the court looks at the match and says, well, no, you do need to comply pre Protocol practice. I know why you have to issue because of limitation, but let's stay it. Nay off, you go comply and then come back once compliance has been sorted. The other one, when you can rush into, um, litigation is when you're seeking an interim remedy. So, um it could be that you, your client wants an interim payment because they're unable to work and they're struggling financially, but it's in the course of protocol practice. And the opponent says no, of course, the only way to get an interim payment is to issue court proceedings. And then the earliest time you can make an application is by the first date, which is the when the acknowledgement service is due, that's what you do. You get have to get to litigation because your client needs that interim payment and your opponent is refusing to do so alternatively, where you need an injunction. Um So there you therefore, when you need an injunction, you can apply for an injunction free issue, but of course, you have to give an undertaking to the court to issue proceedings forthwith. Um So that means you'd have to get into litigation ASAP in relation to that um person due Protocol. So this is looking at the specific protocol really uh applying to a specific type of case. So the idea about the personal due protocol is designed for personal injury cases which are likely to be allocated to the fast track. Um There's also specific claims, by the way for the low value personal injury value claims, which we'll look at very shortly in a moment. They are a sort of a simplified formulaic process. I don't really see a good question coming out of the sqe in relation to that because they are so formulaic, you know, you've got these claims notification form, the response needs to be returned within 15 days and then this happens and then this happens. It doesn't really uh allow for much significant testing around about a uh around a single best answer approach in a multiple choice question scenario for rescuing. Um If a claim leaves that low value process and I'll just be mentioned in brief there, then the person in protocol applies, be aware that even though the person due protocol is for fast track value cases, the spirit and the letter of the protocol applies to intermediate track and multi track planes. So what you're looking at is you're not looking at the core timelines. There, there are specific timelines within the person due Protocol, look at the spirit of the matter. So the essence of what the protocol say should apply to intermediate track and multi track value planes. And that's of course, in relation to the reaction protocol, whether the spirit applies or the letter or the word of the reaction protocol applies really comes down to a core understanding in relation to the value of the claim that you're uh bringing. But so those are the following steps recommended by the personal protocol, we'll go through some of these in a little bit more detail to help you understand what's required. Um And then, you know, and the ramifications of those so early contact is appropriate. So the claim is he's encouraged to contact the defendant as soon as practic uh practicable, given as much detail as possible before uh at that stage. However, we can have um such a thing called a letter before action. So with the preaction protocols, you start the procedure with what's called a letter of claim, a letter of claim sets out the nature of the circumstances. Why you feel your opponent, the defendant is at fault for that. So if it's a taught the elements of negligence sets out the nature of the injury, sustained the losses, um and all that sort of relevant information there. However, what happens if you aren't ready to send a letter of claim? So for argument's sake, um you're not sure about the allegations because you need to investigate fully what your client is saying before you, you can commit yourself to that letter of claim. And of course, importantly, don't forget, as I mentioned earlier about the ramifications of a false statement going into um a letter as part of the Preaction Protocol practice and the ramifications of that being a contempt of court. So if you have a case, maybe where your client um say she, I was at work in the factory and I slipped on a pool of water and I broke my leg and that's the, the, uh, the nature of the essence of the claim. Of course, you could write a letter of claim straight off the bat in relation to the employer's failure to their duty, safe system of work, a safe place of work rather. Um, although maybe there's something in relation to what your client is saying to you, that maybe sounds, um, a little bit, you're cautious about it. Maybe you think has your client really been acing around with mates. So that's when the accident happened is what your client saying, correct, what you could do, of course, in that situation, rather than write the letter of claim, sets out the allegations, you can say what's called a letter before action. So that indicates to uh the employer, the defendant, the fact that you've been instructed in relation to this claim, you're investigating the circumstances. And it also has to set out when you're likely to be able to actually provide a letter of claim. The benefit of a letter before action is preservation of potential evidence. So in that scenario, I gave you when he goes to a factory, there may be CCTV footage and that would be ideal objective evidence as in relation to what actually happened here. So the letter before action yet, it can actually state, you know, please preserve the CCTV footage. Um But we believe it's captured um the accident or whatever it may be. So, in preparation for any letter of claim which is brought um fairly contact like that won't start a timetable running. It's a purpose. The letter of claim starts a timetable running in the expectations for the next steps. Let it before and just simply tell your opponent look, just be aware effectively that a claim may be coming. So the letter of claim that does start critical time limits running uh recommended content of that is summary of the facts, the injury sustained impact of those injuries on the claimants day to day life, indication of financial losses and uh the proposal documents that you think may system or that you would like in relation to the claim. Generally, you may not put that in your letter of claim because um why or do you know what documents you need when the response of the defendant could be to admit liability? So therefore, you're requesting that employer's liability example that that action report books, um previous details of incidents, training and cleaning records, et cetera, et cetera may be relevant because the employer defendant comes back and admits liability. So a lot of the time the request for documents is held back until a later stage pre protocol practice funding. So generally, we used to have uh the situation where after the event of insurance premiums and success fees were payable by your opponent, the defendant, they're now bored and paid by the claimants it means the nature of funding um, is less relevant to be explained to your opponents. Um I'd always recommend putting the in your letter of claim how the claim is funded. It helps the defendant understand the elements of security for cost there if or if for some reason, um, things go or I see you that they make a part verse six offer that you then fail to beat. They're aware that there's an insurance policy that supports the claim. So they know they're gonna get paid for their costs. Uh Also, it could be tactically advantageous to putting in the nature of the funding agreement. So a damages based agreement, the damages based agreement, they should tactically, you have faith and in the, the nature of the claim that's being brought, otherwise you wouldn't have entered into a damages based agreement. Um And that could actually help tactically and show the opponent that, you know, you believe there's a strong case here n by the nature of the funding agreement reached sufficient detail to determine possible case value. The reason for that is so that that case goes to the correct person at the insurer who you're who you are liaising with. So if you've got a case which is a fast track value, it go to a certain type of handler, you've got a case of significant multi track value. It goes to a different handler who's used to dealing with um large value claims. You need it in the hands of the right person. So they understand the nature of things like payments, rehabilitation and what the requirements are in relation to rehabilitation. So it's important that they have that um I've said mentioned rehabilitation governed by the rehabilitation code duty on both parties during pre action protocol phase to consider rehabilitation. Um It needs to be considered even before liability is resolved. Rehabilitation can be simply just the fact that the uh defendant offers to pay for the claimant to have physiotherapy. They've had a whiplash injury, they're getting on with that. They're still off work. But um having that um funding for the physiotherapy on a private basis, having that as soon as possible may help, help them recover quicker. And of course, the benefit to quick recovery is the claimant um stop suffering uh from their injuries sooner rather than later. And of course, the sooner they recover, the less money the defender will have to take in relation to those losses. It reduces down the end of compensation. So, in uh embracing the nature of rehabilitation, everyone's a winner. In regards to that more complex cases, you'd have the instruction of a case manager to manage specific rehabilitation needs. Someone's lost a leg or a tetraplegic, then what you'd have then is someone involved to help look at? Ok, what do we need here? Adaptations to the home can be funded certain types of treatments, scans, investigations, lots of different elements to be in my, it comes to rehabilitation. The defendant then normally uh responds and must acknowledge the letter of claim within a specified period. And that's 21 days. Don't forget that's the, the letter of the person who due protocol, not the spirit which we look at for immediate jack and mortar truck cases. If there's no response, um you would be expected to give some chases, you know, you know, uh when we hear from you respond by letter of claim or whatever, it may be. Once the response is made to that letter of claim, the defendant has three months from the date of their acknowledgment within which to investigate the claim, that's to the letter. So basically, that's how the fast track approach um is made. Not the intermediate track or, or multi track note as well. The three starts to run from the date of the Acknowledgments, ok? You got 21 days to acknowledge. If you acknowledge on day 21 you got three months from that date. If you acknowledge on day one, it's three months from the uh the date you acknowledge that day 13 months starts to run not from the end of this 21 day period. Though, your client is meant to deal with issues comprehensively in relation to liability. So, um, you don't just come back and say liability is denied, you come back and say why liability is denied? There's a denial of a duty denial of breach or whatever it may be. And you state the reason for that disclosure again, throughout the the form of reaction Protocol practices are expected the disclosed documents to try and narrow the issues down between the parties, the liability dispute that employs liability example, I gave you providing the CCTV, providing the action report but providing the clean lo in relation to that spillage, all the general, all those sorts of documents will be expected um during the course of protocol practice and both parties doesn't just come one way. It's a two way process with regards to disclosure an annex c of the preaction protocol sets out expected documents in relation to different types of personal injury claims, which is very helpful and very comprehensive certainly in relation to employers liability claims. The list of all sorts of documents to be um to be expected in a certain type of case in relation to experts. Um their use is not governed by the civil procedurals, post litigation. It is uh but it's expected that an agreed expert is used by the parties for uh ger and personal injury cases. The idea about the expert being agreed still is the claimant's expert. So it's not a single joint expert. You'll see that terminology in the expert film uh later on. So it's not an expert which is instructed by both parties and then provides a report to both parties at the same time. Uh It's an agreed expert basically means it's still the claimant's expert. But the parties have agreed the the individual in question, claimer puts forward a list of the suggested experts and that they utilize that to agree the expert in in question. Um If within 14 days, no objections are raised, then any one of the experts can be instructed and this is the agreed expert. Uh And of course, the report is still the claimant. So the claimant decides whether to disclose your alarm on that report if disclosed the parties with the right to ask questions of the expert. And that response of course, is then sent to, to both parties as part of the uh the medical evidence in the uh in the case. Um, just by agreeing, the experts in question doesn't give the defendant the automatic right to see that report. Unlike if it were a single joint expert, uh I mentioned earlier about the claims process for low value personal injury claims, be aware of this. I don't go through it in great detail. Basically, it's uh a separate process, a quicker process. Um for those claims with the value up to �25,000 includes road traffic accidents, employers, liability and public liability cases. Idea. Is it speeds matters up? There's a very short time on to respond on liability, not that large 21 days in investigation. Three months. Um I think with our Director of Access, it's 15 days, it's a very short process and it's an online process. Uh You submit a what's called a claims notification forward it and then you get a response from the ensuring question. Uh The protocol applies to cases where general damages exceed 1000 pounds in the accident before the 31st of May 2021 and 5000 pounds thereafter. But of no more than 25,000 pounds or less in value. The following claims are excluded from the portal. So, claims involving fatalities where the claimant is bankrupt, whether claimant or the defendant is a protected party or whether there's more than one defendant. We also have the preaction protocol for purse injury claims below the small claims limit. So it's the RT A small claims protocol that applies where claimants and has suffered suffered purse injuries, including but not limited to whiplash uh because of a road traffic accident and wishes to claim compensation, but also the amount claimed for the injuries is not more than five and the overall claim is not more than 10 small claims value. You're seeing case management and allocation a separate field about the differentiation between small claims track and fast tracking values. Um that explains in greater detail how that works. And what we're looking at here is if it's a small claims track value, this is the uh pre action protocol practice. And of course, if it's a fast track value, then we've got the low claims value process. We also have the debt reaction protocol. Um I don't go through this in, in a great bit of detail. Just highlighting a really important elements in relation to the debt reaction protocol applies to any business includes a sole trader or public body, claiming a debt from an individual. It's important there. It doesn't apply business to business debts. You got two businesses, it's not your debt production protocol that applies. So that's important distinction and to be aware of um again, the protocols ends are very similar to what we've seen before and what you would expect when you're sending, say the letter of claim. So uh it's a debt. So it's a specified amount set out the amount of the debt and interest or charges due on that. Um The details of the agreement for it debt arises. So it's the contract in place. Um details of how the debt can be paid. So the method and address of by bank transfer by check where the check to what the count is to pay that sum of money to uh details of how to proceed the debt, which is to discuss payment options. So uh uh an agreed payment plan on a monthly basis um up to date account, uh obviously setting out interest, administrative charges as well. And a copy of any reply forms to the response to the uh initial letter of claim from the, from the creditor to that debtor things you'd ordinarily expect to be provided if one party is pursuing a debt from another. Um Interesting, the letter of claim should be sent by post. Um The creditor can also send a letter of claim the other um contact details. So for example, they've got an email or account and things like that if the debtors provided those details, but a hard copy has to be posted still. And that's unless the debtor specifically requested. The creditor don't, doesn't do that. The debtor doesn't reply within 30 days of the date of the letter of claim, the creditor is able to start court proceedings. But of course, generally, what you'd also see there thinking about avoiding litigation if possible chasers, telephone calls chasing your response, be aware as well. This is only the sp assessment criteria um be aware of the use of Welsh uh in um civil courts. So in every case in Wales, it's possible you can utilize the Welsh language by a party or by a witness. So it could be a witness giving their evidence in Welsh. It could be the parties that claimants uh wants to actually run their case in Welsh by utilization of the language and also all the forms in question, being in the Welsh language and that is permitted and they've got the right to do so which is important, you have to inform the court at the earliest possible time of that fact. So appropriate arrangements can be made for the management and listing of the case, the appropriate arrangements being it goes to a Welsh speaking uh judge, it's dealt with Welsh speaking, um members of the court staff, um any documents placed before the court in civil proceedings in or having a connection with Wales may be in the English or Welsh language. It's important um Having a connection with Wales is the key element there. And obviously, if you do, that's the problem. If the costs are incurred as a result of a party, failure to comply with this direction, a cost would have may be made against that party or their legal representative. So basically the options there is open to your clients as a Welsh speaker. Um and they can have the option to run their claim at the meaning of Welsh. Be aware of that, of the question. Maybe you've got a witness or we'll see in um a later stage witness statements uh and how to draft uh a witness statement from a la in a language other than English if it's not the play or the witnesses first language. Um This is a way of course thinking about it yet. He been able to run the case through the media of Welsh as well. Let's have a look at the question in its area. Then you've been instructed on behalf of a client who's suffered a personal injury. The client was walking along the street and past a group of workmen employed by the council. They were digging up the road so as to lay a new electricity cable and they were using industrial machinery. One worker was using a drilling tool, a piece of the machine, he broke off from the drill and hit the client in the face, blinding them in their left eye. The client has also sustained a loss of three teeth and significant facial scarring. It claims his claim is of more to trap value. At the time of the work being carried out, the council were filming a video to assist with their training program. The client has been consistent with their version of events and you have concerns so inconsistent with the version of events and you have concerns as to whether the client was in an area called or not for Council or staff only. You have only one, only had one short meeting with the client so far. What is the best course of action to take at this stage? Eight, send a letter of claim setting up the relevant allegations. The letter should advise the council disclose the film footage and allow inspection of the tool used as soon as possible. B send a letter of claim setting up the relevant allegations. The defendant must acknowledge the letter of claim within 21 days was acknowledge the defendant has three months from the date of the acknowledgement to investigate liability. In the absence of a response, the claimant can litigate seat, send a letter before action advising the council to reverb preserve the film footage and the tool used. Whilst you investigate the claim, the letter should set up the basic circumstances of the accident as known and advise as to when a letter of claim is likely to be set to send a letter before action advising the council to preserve the film footage to you. Whilst you investigate the claim, the letter should set up the basic circumstances of the accident. As known each in a letter before action advising the council to preserve the tool used. While you investigate the claim, the letter should set out the basic circumstances of the accident as known and advise as to when a letter of claim is likely to be sent. C is the correct outset. Send a letter before action, advise the council preserve the field footage and the tool. Whilst you investigate the letter needs to set out the basic circumstances of the accident as you're aware of them. But also has to importantly advise as to when a letter of claim is likely to be sent. Um a not the single best answer, send him a letter of claim as you have concerns in relation to your client's evidence as to whether he uh was within an area where he shouldn't have been. It's probably better to send a letter before action. What to investigate. You send a letter of claim making allegations that he was walking on the pavement and not in that cordon off area, there's a risk isn't there that you've made a false statement and there's contempt of court there. So you be very cautious and just fire him straight into a letter of claim. Um The not a single best answer. It refers to the specifics behind the preemption protocol for personal injury, which refers to once a knowledge, the event has three months from the date of knowledge to investigate liability. Um That's to the letter, you know, this is a multi track value claims. It's the spirit of the uh reaction protocol that applies not the specific to the letter. So it's three months is variable in relation to am intermediate claim. And of course, again, that refers to sending a letter of claim as as I explained letter called for action is a better course. Uh Here um D um is crap say for the fact that it doesn't refer assuming to the need to set out a timescale for when the letter of claim is due to be sent and E is crap, but only refers to the preservation of the tool and not the CCTV footage that CCTV footage is really gonna be key in relation to this matter. Thank you very much.

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Part 7 - Webinar

00:13:39

Hello, my name is Darren Hack Green. Uh This is film seven in the District Resolution series four sqe uh This film deals with the subject matter of limitation. OK. Set out there, the SQ assessment criteria and what you need to be aware of in relation to uh limitation. So calculating limitation periods for claims in contract and tort that does tin a little bit to what I'll just set out there below with the G CS Q assessment criteria in relation to jurisdictional matters which Holum I'll touch on that in a moment. So it's a purpose of limitation. Why do we have it? Uh So the primary purpose is to protect the potential defendant from the possible injustice of having to meet a claim when evidence to meet the same may no longer be available due to the time which has passed since the um course of action arose. It also provides an end to the time when a person has the expectation and an action may be brought against them. So effectively, the limitation period passes that individual can have the comfort of knowing that uh a claim will not be brought against them. No limitation periods are set out within statute and set out within the Limitation Act. 1980. You don't need to worry about um statute as you know, for, for sqe but the the main periods are there uh for you to be aware of in relation to contract and uh and tort. So contract simple contract, uh six year limitation period will look by the way in a moment in relation to the start of that limitation period. Taught where there is no personal injury is a six year limitation period. Taught as a personal injury has a three year limitation period, just be mindful of that. Cos that could easily come to question sqe when you're aware of it being taught, maybe from a vehicular incident where there's no personal injury where it's a six year limitation period as opposed to the three years, also be aware of fatal accidents. Very important with fatal accidents up to three year limitation period, but that comes from the date of death. So for argument's sake, if someone was involved in a road track accident on the fourth of December, but survives for a short period in hospital maybe until the eighth of December and the eighth of December is when you start calculating that limitation period. It also the way comes in relation to um death is that death will reset the limitation period. So the death doesn't have to be linked to the accidents. You could have someone who's involved in uh uh accidents at work and then a year and a half later, dies of a completely unrelated uh medical condition. What that means is that limitation is then reset for the representatives of the deceased and it will start again from the date of death. From that three year period starts running from that time. Be aware of claims that have a mixture of tort and contract, they can actually cause some difficulties because if the tortious period is three years of contract six, you can't just be banking on, you know, issuing proceedings in time for contracts because the limitation period may have passed in relation to the tortious claim. You're aware of some additional complications, um which are based on aliens of jurisdiction, I suppose with regards to limitation periods, different countries have different limitation periods. So as you've seen from the, the talk module, when it comes to elements of jurisdiction and how substantive law works. If you have an accident in a different country, then generally, um substantive law is the law of that country and substantive law uh are issues in relation to liability quantum and also uh limitation just as a warning accidents say, uh road traffic accidents in Spain limitation period. The talk is one year and not your three years as you'd have here saying for Italy, it's two years, it's have to be very cautious and sometimes limitation periods change in different jurisdictions. Also be aware of the circumstances of, uh, where the accident occurred as well. So two different, uh, different ways of looking at that air and boat. So in the air. So you're obviously on a plane, uh, you've got a two year limitation period and that's from when the flight lands pursuant to the Montreal Convention. Athens convention governs, um, boats, accidents, accidents on boats at sea. So, uh, that's two years from disembarkation as the Athens invention. So, just be mindful of that on a plane, less of a worry in relation to from the time of the flight lands, co planes don't stay up in the area, you know, for indefinite periods of time. So the likelihood is that the limitation period starts running out on the same day as the the accident itself, but on a boat, uh that may not be the case, it may be the fact that you're on a lengthy cruise. Uh And therefore maybe it's a few days before disembarkation. So that basically means the limitation will start running from that disembarkation period. So time runs from the earliest uh time at which an action may be brought in. It's the point at which the facts exist established in all of the essential elements of the cause of action. We look specifically in relation to this when the time runs a bit later in this film for contractual disputes. The time period begins on the date on which the breach of contract occurred and that's known as the date of accrual uh limitation period doesn't run from the date of the contract itself. And it's also irrelevant whether any damage was suffered at the time of the breach or whether the inno innocent party knows there's been a breach. It's important to be aware of in relation to contract. So it runs from the day of the breach. You may, you may not even be aware that there's been a breach. Also, the breach may not s um uh meant that you've suffered any loss at that point. But limitation will start running from that point. Um For talk, the limitation period runs from the date, the damage he suffered. And again, we'll look at the date specifically in a little uh a little while in relation to um negligence where the facts relevant to the cause of action are not known at the date of accrual. And you can uh cannot bring a claim either six years after the date uh which the cause of action accrued or three years from the earliest date in which the claimant had the knowledge required to bring a claim in respect of the relevant damage and the right to bring such a claim. And the uh knowledge required means knowledge both of the material facts about the damage in respect to which damages are claimed and that the damage was attributable in whole or in part Act remission, which is alleged to constrict negligence as well as the identity of the defendants in relation to the court's involvement with limitation. The court has got discretion to dis apply the limitation period in personal injury claims under section 33 of the Limitation Act, you don't need to know the, the exception. The idea is when limitation has um passed, um, the court can actually, uh, in essence, say it's all right. It doesn't matter, don't worry about it by applying it by this method. The test is whether it would be equitable to do so and whether it would be prejudicial to the, the defendant involved, if the defendant of course, has taken issue with limitation having um passed, um, we'll see in other films by the way, in relation to the steps that are taken by defendants when they're trying to challenge jurisdiction. We looked at this in relation to or we're gonna look at this in relation to a film with regards to service at a later stage. That's how a defendant reacts to a situation where limitation they want to take an issue uh with limitation um in relation to the limitation, if you wanna extend it or to supply, it is to show the, um is the claim to show why the limitation should be uh dis applied and can a fair trial take place uh in, despite the delay in question, also bear in mind that there is a potential to extend the limitation um period, you can only do it in certain types of claims, judicial review, defamation and personal injury person should be the most common one. So you are able to extend the limitation period. You do that with agreement with your opponents. It may be the facts. Maybe that you um are in the process of under taking some good settlement negotiations or you have a mediation date um coming and what you're thinking about is that save cost rather rushing to litigation and pay the issue fee. Let's see if we can settle it. If we can't do so, then we issue proceedings outside of limitation. But by extending it, in essence, you're not outside of limitation because you've extended that period, be mindful as well about how limitation does change in relation to specific individuals. So we've got the core limitation periods we mentioned there, but with Children limitation period doesn't start to run until they turn 18. So limitation ends when they turn 21 with protective parties that if they were of unsound mind at the time of the cause of action or the cause of action causes the unsound mind. The limitation starts to run from the date that they are no longer of unsound mind. However, if the person was of sound mind at the time of the course of action, the limitation period will continue to run and if they subsequently become of unsound mind, be aware of the difference there in relation to how that works. So when you're calculating the limitation but it's when we looked at what I mentioned earlier. So time runs from the day following the day of accrual of the accident. The reason being is because parts of a day are ignored, you have to be very cautious in relation um to this. So for argument's sake, if we're looking at the fact that we've got a road traffic accident and that goes on the second of um, November. Uh if it's in about ignoring parts of the day, basically means you need to issue proceedings within three years on, uh, but on the third of November, so if let's say you ignore that second of November date, but just be aware of the difference in relation to that, say if the accident on the second of November happened, I gave the example here at 12:01 a.m. So if we one minute into the, the second of November, you're not going to get away with actually saying the third of November is when, um, the limitation period starts to run from. Ok. Because in essence, you've got, you know, what would be 23 hours and 59 minutes left of that specific date. Conversely, if you've got the, um, the second of November is when the accident occurred, maybe it happened at 11:59 p.m. You've got one minute left of the second of November, then yes, third of November for the period to stop running from. That's absolutely fine. So generally speaking, though those, those are the rules, but you find in practice that you do take the actual day of the accident as your starting point and don't worry about the, the following day, um, being because of parts of the day being ignored, it's too risky in all honestly. And it's better just to actually, um, calculate limitation from that date itself. The date of the course of action. When does the limitation period end or the time ends? When you deliver your claim form to the court and pay the requisite fee, it's important to be aware of that distinction in relation to limitation in case the limitation. When if we send a claim form off to court, of course, the court will then issue that claim form and then you have to serve that claim form once it's been issued. Ok? But when it comes to limitation, the protection in relation to that limitation period is when that claim form is delivered to the court, date stamp is received by the court. And as well as when you pay the requisite fee, which you'll pay at the same time as that claim form being delivered later on the court may then give you a different date of issue because that's what generally what happens. A claim form comes in the court will rubber stamp it with the date stamp. Um And then maybe 34 days later, you're gonna get a notice uh of iss issue and that the case is then issued. So it doesn't matter if that uh date of issue is after the expiry of limitation, the protection of limitation. It's important things. The claim form is received by the court. What it does mean of course is when calculating the next step. So the need to serve that claim form, you then have four months to serve that claim form from the date of issue, not the date, the um the court receives it and the date of issue. If you're serving within the jurisdiction, if you're serving outside of the jurisdiction, then you get a six month period within which to serve the uh the claim form. Just be aware how that, how that um that works in practice. Also, there's a long stop limitation period of 15 years and the date of the alleged breach of duty, that long stop may bar a cause of action at a date earlier than the claimant's knowledge. Um Indeed, it may even bar a cause of action before that the, the it's accrued. Um Simple fact is tough. It's a 15 year long stop um period theres it right. Let's look at a practice question in relation to this area to represent Mr Smith who was injured in a road traffic accident on the fourth of August 2021. Mr Smith sustains a fractured leg in the accident on the 16th of December 2022. So a year and a half later, Mr Smith walks in front of a bus and he sadly killed Mr Smith's death, had nothing to do with the injuries he sustained in the index accident. What when does limitation for any claim made by the defendants expire for this claim? A is it 1/4 of August 2024 D fifth of August 2024 seat fourth of August 2027 D 16th of December 2025 E 16th of December 2024. Uh so 16th of December 2025. That's a day. So don't forget in relation to this, when it comes to death, death will reset the limitation clock. Ok. So, uh the dependants have three years from the date of the death to bring the claim. It doesn't matter that the death was not caused by the accident. It is some other uh event that caused it. The date, the death itself just resets the limitation um clock to that three year period. So it runs three years from the 16th of December 2022 when he was killed. So it's now 16th of December 2025. Thank you very much.

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Part 8 - Webinar

00:34:20

Uh My name is Dan Hackney Green and this is Film eight on the Sqe District Resolution series of films. Uh This film deals with the uh the Asian court proceedings. So it's just uh showing the screen now. So what do you need to know in relation to the re assessment criteria? Uh I've set it out there where to start proceedings. We've seen that in an earlier um film in relation to allocation business between the high court and the county court and also the jurisdiction of the of the specialist courts. Of course, we need to look at each of um how to issue uh a claim form. We deal with service in the next film after, after this one, three main ways um to start a claim to issue a claim. Uh the part seven process, that's the usual way of starting a claim. We talk about issuing court proceedings generally part seven is uh what we mean when we refer to that, there are different ways of starting a claim. There are what's called a part eight procedure that's for um different types of claims. So the ones we've got listed here, infant approval claims we'll look at this in a little bit more detail. So that's when we got what budget infants approval it can be for those who lack capacity. Um So protected parties. That's when you settle a claim before litigation and you need the court's approval when it comes to infants. Those at the age of 18 and those who are protected parties, the court has to approve any eventual settlement reach between the parties and costs only. Uh We've seen this in an earlier film. So effectively, if you settle your claim um prior to litigation, in order to begin the cost assessment process, you have to issue part eight proceedings. That that's the formal process for costs obviously. And of course, we've seen it with the claims notification from the, the uh procedure for those cases uh involving personal injury, which are of a lower value. We'll see later as well in relation to additional claims. There's another type of claim form which is for this part 20 additional claim and that's where you want to blame. Uh uh the defendant, you want to blame another party who's not party to the action for the losses that are being claimed as against you by the claimants. But we'll look at that in more detail in a another film. So in relation to the um the uh claim form as well, it's on a form called an, an N one. and the definition of starting um, proceedings is when the court issues that claim form. The court then seals the claim form with an official seal on the front page of the claim form itself is considered a an administrative um document. Um the back page and has a bit more detail in relation to your hands where you can insert the particulars of claim. Uh and all that sort of information generally, in the majority of claims, you don't complete that back page. It's like we'll see that when um we serve the response pack with these documents, the response pack is the uh bundle of documents provided by the court that goes with the documents we serve upon uh the defendants. There's uh one of those forms is a defense and there's a free text box, you can uh complete and put in your defense. It's rare to you say, for those who are looking to get the same person who just, you know, fill in the gaps in essence, um you'd only use the back page of a claim form to set out your particulars of claim if you've got a really maybe a simple debt matter where you don't need to um fill in that much detail, things like personal injury, claims and elements of breach of contract. You do a separate particulars uh of claim purpose of the claim form at the front page which is administrative. It allows the court to see at answer sort of uh core information they need to be aware of County Court High Court plus division. The nature of the claim is it contractual tortious and the case value determine uh the issue fee which is due. We'll look at that in a moment but also the case determines the elements of provisional allocation to track which we see in a later video in relation to case management as well. It also sets out the parties, addresses claimants and, and the defendants. Uh a fee is payable based upon the case value that's important. And we're looking about statements of value in a moment how it works is a separate form gra ex 50 which determines what fees are due. There's a slide in scale. So for a lower value claims, uh, small claims matters as set fees, you're moving through at a later stage, it's a percentage of the claim that you're bringing is up to a maximum, the maximum is 10,000 pounds, um, for, uh, an issue fee that tends to be the claims which are in excess of 200,000 pounds. So 10,000 is the most you'll, um, ever pay for an issue fee, which in itself is quite a large, um, sum of money. And in light of that, in light of the fact that the issue fee is and can be a significant amount of money you need to bear in mind what are called fee remissions. And this is something which has come about once the issue fees increase significantly a little while ago um which enables um claimants with limited income or s uh or savings to be entitled to either a remission to a reduction or a refund of any uh of the issue fee, not just the issue fee, by the way, um Any court fee, it can utilize fee remissions for, it's not limited to individuals as well. Uh Either it can involve sole traders and charities can't involve companies that's important there. Um You need to make a new applications every time you incur an issue fee, uh an issue you a court fee. So um you need to say if you make an application, then uh you've paid a, a fee for that. So if an application on notice 303 pounds, then you need to do a new fee remission every time. And the reason why it's important to every time is because circumstances change at the point of issue, the claimant may have had some savings left and therefore that may influence the right to a fee remission a year later. Uh when they've not been working due to the personal injury they sustain or whatever it may be. When you make an application for an interim payment, they may not have any savings. So therefore, the figure mission would be successful potentially in relation to that the rules in relation to timings, you can actually make the application for the fee uh in advance of incurring the fee So on each of the uh the forms that the application notice is a part where you can put in the details for fee remission on the issue uh claim form as well. So the idea is before you incur the fee, you could actually get the remission or get it for free in essence, so the paying form can be issued without a cost um to you, the invariably though the, the best way and the way that in practice you see it's operating is that the issue fee or court fee is paid and then the um remission is sought after that. I mean, it's, it's refunded to you in, in essence how it works, you have to make the application for the fee remission for that court fee that's been incurred within three months of incurring that court fee. That's an important time scale. To be aware of calculation of the eligibility is based upon household income. That's the claimant and their partner. If they have one, the, also the, the other thing to be aware of as well is the different notes about these things. Obviously, there's an expectation that you investigate, consider fee emissions that's important. So for argument's sake, if the defer the claimant has got a significant amount in savings, therefore, would not be eligible. Have that conversation with the claimant um draft in attendance note in support of that. So when it comes to the um cost being assessed at conclusion, and the defendant raises a question over eligibility for a fee remission. You've got a temporary attendance though, which addresses that it's important because the defendant will see as a saving, especially with something like a 10,000 pound issue fee. The development won't pay that issue fee if there hasn't been an application for a fee remission or consideration given to that. And that would end up being a massive sum of money, which you'd have to write off as a firm if you have failed to undertake those investigations. So every claim always think about it. Actually, the elements of the remission which is um available. It's important as well. Of course, for those clients who are paying privately because it's more important for them because it's their own money which is paying for this claim, they can get a remission, that's great for them as opposed to maybe a personal injury claim while we're looking at um claiming cost at conclusion. So the sense of value on the claim form doesn't limit the court to make a judgment in that award. That's important to be aware of a case. So just because you plead a case and you limit the case value to a sum not exceeding 100,000 pounds. Doesn't mean to say when the court looks at assessing damages. If they think the case is worth 100 and 50,000 pounds, they say it can't give you that. They have to give you 100,000 pounds, it doesn't work that way. Um So effectively the, uh, the idea about the statement to value on the claim form, it determines the court fee paid for the issue fee at that stage. And of course, what I always recommend, um, in practice is do a contemporaneous attendance at issue in relation to determination of the statement of value you feel on the claim, so you assess that thing about general damage. You seem to have the losses if it's a personal injury claim. What value do you place on that? I say if there's ever a query at a later stage is the fact you've issued for a sum less than the value of the claim, which could be an abusive process. Uh You've got a note, a temporary uh attendance note which supports your thought process at the time. What can happen? Of course is that matters change as the case goes forward and the value does increase. Therefore, there is an expectation to uh look to increase the value of your claim during the course of litigation and you know, to do so, you'd have to also pay the additional um court fee with regards to that. There has been uh well, there was a plethora of cases following the increase in the issue fees um of um high street firms who in order to help their cash flow were deliberately um paying a lower fee in um stating the value on the claim for at less than what the case is worth to pay, uh a lower fee. These are cases where it's evident that, you know, you're, you're paying whatever it be 400 pounds saying that the, the, their claim is limited to a sort of 1000 pounds. But you've got a schedule of loss totaling 20,000, 220,000 pounds. So whatever it may be cases where it's evident that your statement of value on your um, claim form and your limitation on your claim form is incorrect because the documents you've got your own schedule pleading those losses is way in excess of that. And obviously, affirms are trying to rely on the fact that, well, it doesn't stop the judge giving you more than what you've limited the case to. And, but what, um, the resorting, um plethora of case law said was that issuing for a sum lower than what the case is worth intentionally is an abuse of process, you end up getting struck out, um, which is a, uh, a course of concern and don't forget in relation to that. Of course, with abusive process, the quos qualify one way cost shifting doesn't apply to the exceptions. Well, you look at this statement of value thinking about it here. How much am I going to limit the case to, to determine the issue fee? You need to disregard interest, disregard costs, disregard the fact that court may make a finding of negligence, disregarding your potential counterclaim or set off and disregard any offset or benefits. You're looking at just exactly what the claimant is beating by the gross sum in relation to their possible claim. I said before, um the rear of the claim form uh does allow you the opportunity to complete a particular claim, rarely done because there's not much space there. Um You do have a tick box there, which is the option is um it your particulars a claim to follow. So that's a separate um document are attached, which is important. Um So you can actually do yours of claim, draft your particulars of claim outside of that claim form itself on the claim form as well. There's a box which confirms you or ask you to consider. Are there any human rights issues involved um in the claim itself? So, in order to issue properly, um what you need to do is take the court thing that's important. So it used to be, you attach a check to your letter along with your claim form, but we then have now these PB A accounts. Uh what that is is each firm has its own PB A account. You put your PB A uh personal banking account details on um the, the letter to the court or on the claim form itself. And what happens is the court in PW um the, the sum involved and that gets um moved straight onto our ledger. Um Just basic health are less effectively cash and checks going back and forth administratively, just the easier that way. Um, we also need to do is ensure that the right number of claim forms are sent in uh to the court to be issued. So, what you're looking at is one copy for the claimants, one copy for the court and one copy for every defendant. So, um, obviously you've got claimant defendant and court three copies. If you've got two defendants, claimant court defendant, one defendant, 24 copies, that's important. What will happen is if you send your claim forms into the court for issuing the court notices as one missing because of, you know, two defendants. But you've only sent in three claim forms. Uh The court won't do your job for you and photocopy an extra form and seal that one. They'll send the whole lot back to you. And so therefore nothing will happen, nothing will be issued. And then you've got a little bit of a problem if you're touching on limitation um there. So just make sure you've got the right number of claim forms, what's important as well. Uh If you have a party who needs a litigation friend. So if you have a child as a claimant, so an infants under the age of 18 or a protected party. When you issue court, when you send that claim form into court, along with the fee, you need a certificate of suitability on what's called a form N 235. That's like a formal document where the litigation friend uh agrees to act for um, the claimants as litigation friend and understands their duty to the court, but also declares why um they are litigation friend. It's a child or it's protected party. And the reasons for that it's important to be aware of is that if you um issue a claim for a child or protected party without a certificate, certificate of suitability, it's an invalid claim form. OK? And nothing you then subsequently do will make it valid. It. What will happen is even if you then file the N 235 at a later stage, it doesn't change things, ok? You'd need to effectively discontinue that first one and then reissue when you've got the N 235, which is effectively, it means you've wasted a, a court fee just an aside on that as well. The other thing to be aware of, which is another thing to be cautious about is when you have a fatal accident, a fatality claim. So you're um suing uh as the claimant being the administrator or administator tricks or the uh executor or exec of the estate, you will need the document which gives you the locust stand um to bring that claim. So you'd need either your letters administration if they died in Testate or your grant to probate if they died, testate. And that's important. OK? If you issue court proceedings and you don't have uh either less administration or grants of probate. Again, you have an invalid claim form and nothing you do subsequently will make it valid. You need to discontinue and then issue again once you've got the grants of probate and, or, and, or letters of administration. So what happens once the court gets the claim form and they'll a stamp it um, on a receipt, they'll seal it. Um So all claims will be sealed with the official court seal note, the date of issue on the claim forms. And also they'll apply a separate notice of issue to confirm that as well. And they'll also provide a case number. Um They'll also send the response pack to the claimant so that can be then sent on to the defendant when the claimant is affecting service of the, um, the claim form. Just an aside, um, just be careful with regards to the notice of issue and the date of issue on the claim forms. I've had instances where they differed. So the notice of issue date is launches after the uh one on the claim forms is the one on the claim forms, which is important that calculates the next steps in relation to the service of the claim form. So what happens if you don't want to serve the documents? But you want the court to serve them cos then we were talking then about date stamping and ceiling and then sending them back for you. That's when you as a claimant want to affect service. Uh, but of course, you can ask the court to do it. Ok. That's easy enough. So off it goes to the court, court can affect service themselves. Uh, that is an option for you. And if you don't want to do that, you want to serve it yourself and you mark on your letter very clearly, solicitor serve and they look seal them, send them back, just do not serve. Make sure it's clear to the, the court in relation to that. And if you want the court to serve, then of course, you need to uh make sure when you file uh your um claim forms for issue, you also attach all the other documents that are needed in readiness for service. So it was a personal injury case because you've got the claim form. You need the particulars of claim, you need some medical evidence, you need your schedule of loss, your notice of funding all that has to go copies of each and every um claim form. So, so actually duplicated copies of each and every claim form going into the court there and then the court has those documents. They can see you then serve them and they'll do so by um first class post, that's the way the court will serve um those documents. I've just talked about sending your claim form into court and getting it issued and getting it wet sealed in that and it's getting a seal on that claim form, getting it sent back to you and then you affect service thereafter. Um That is a way of issuing a claim form. Uh for certain types of claims. We also have uh a more streamlined online version of uh of a claim form uh or a way to issue proceedings. Certainly, this is becoming more and more common now and expected. Um, what we're seeing, um, in relation to this online system, it's now being taken further to not just issuing, it's taken to the next stage where you fire your directions questionnaire and then it comes offline. The idea being with some types of claims of what will happen, it eventually is the claim will run all the way through as an online process. So literally, you need to upload a document, do something. It's on this online process. There's no nothing is done outside of the online system. That's the, the dream of the court. Uh And that's what we're, we're working towards at the moment. So at the minute I say only up to the uh directions, questionnaires. So looking at a couple of uh and different types of these, we've got the money claim uh online system. Uh That's basically where you've got a specified amount of money of 100,000 pounds or less. Don't forget that 100,000 pounds or less is the one where it has to be county court cos don't forget you've seen from, uh, an earlier video. If it's in excess of 100,000 pounds, you have the option of, uh, the high court if you wish to do so, this is where it's 100 K or less. So, therefore, it's a county court case, money claim online, specified amounts of money. So you're looking there, you get actions. That's what that is. Um, the idea is you can use the money claim online as long as the requisite criteria are fulfilled. Um It's a procedure under part seven which is your usual disputed uh issue in court proceedings process. Uh Your client isn't a child or a protected party or in receipt of legal aid. So what you're saying there is if they are a child, you can't use this process full stop. The claimant's address for service is within the United Kingdom. Very, very common. You've got elements of jurisdiction here. Ok. So same for the defendant's address has to be within uh the United Kingdom cos IFC is outside the United Kingdom. You've got issues of service outside of the jurisdiction, which complicates matters. The idea about the streamlined sort of online stream process, simplified and easier. So any sort of complications to acclaim. So basically means it's not suitable for you. Um The claim is against a single defendant or two defendants if the claim is for a single amount against each of them and also the defendant isn't the crown, you can't sue the crown via an online process in any way, shape or form or a person known to be a child or protected party. So if the money claims online, if the claimant's a child or protected party or the defendant is a child or protected party, the the online system is not the, the way to go. Um I would go into detail about how it happens, but literally, it is a simple process of that. You go online, you upload the details, you press a button and you get yourself a claim form um which has been issued. So it is instantaneous, which is a great thing about it. Um If you've got a limitation coming up, uh and you're panicking about it and the limitation period ends tomorrow. Um You know, you can go online flick of a switch and you've got yourself an issue claim form. So that's the um the good thing about this online process, the instantaneous process, we also have the damages claim um portal which are very common uh to be used nowadays for um personal injury claims, basically claims that aren't suitable for many claims online. So nonspecified amounts in essence, in relation to the the damages claim brought up under the majority um to claim for damages only. So anything like injunctions, whatever it may be, again, it's won won't follow the part aid procedure. It's a part seven of your usual process. If you asked to claim, I say it not wasn't suitable for them when you claim online. Uh your claimant and the defendant have to both be legally represented in relation to uh utilizing the DC P the damage use claim portal. Um Claimant can't be a protected party, but the difference with the damages claim portal is they can be a child so you can have an infant um who issues a claim via the damages claim portal. But of course, you'd need to make sure that you upload your certificate of suitability at 235. When you're actually issuing the claim, um can't involve small claims value claims. We looked uh we look at this in relation to case management and what that means later on. Um But it's a cases of fast track value or above and, and you've got a claim which is either one claimant against two defendants or um so one claimant against two defendants or 02 claimants against one defendant. So in essence, three parties in totality, you got two claimants, you've got two defendants. You can't do it on the DC thing. What else? Uh What are the other conditions that has to be conducted in English? So you do have options. We've seen in the films in relation to the conducting your claim through the medium of Welsh. You can't use the DC P. Uh If you're gonna do that, it has to be an English claim. The claimant can't have him force against them a civil proceedings order and all proceedings order, a civil restraints order. Uh Those are unusual but their orders were basically put a claimant who's a vexatious litigant, someone who literally just issues for the sake of it. And he's literally clogging up the court system. Um with various matters, the courts got involved and actually put an order against them that restraining their ability to, to do so. Um you have to check that with your client before you use a DC P. I've never had a client come back and say, yeah, I've got one of these. Um I think it's very, very unusual. Um Also the claimant believes the defendant has a postal address for service within England and Wales again, looking at jurisdictional issues if they're an individual aged 18 years or older and are not a protected party. So the difference here, you can be an infant and utilize this DC P damages claim portal. But if the descendant is a, a minor in infants or a protected party, then you can't use it. And of course, if the claimant's a protected party, you can't use it anyway. So the only way you can use this portal um as an infant is if you as the claimants are the infant themselves, not the other party. And again, the defendant can't be the crown. Uh What happens is the claimant must give the defendant at least 14 days notice um of their intention to bring a claim using the DC P. And again, uh the defendant has to be legally represented in this situation. So I've mentioned part eight is a very common method of bringing. Uh these claims also be aware of um different types for you to bring your claim. Part eight is the other common um way forward. I talked about this very briefly, the start in relation to your infant approvals cost only matters in the the claims notification form, the the low value uh injury claims process. Uh they're issued for um more commonly for infants. Um when you have a pre issue settlement and you need approval of the court. If you have a post issue settlement, you just make an application for an infant approval hearing. You don't need to issue part a proceedings separately. Uh Part A is there for these situations where you have done something and settled it prior to the uh litigation of a part seven claim form and therefore you just need a court claim number. You need some involvement uh from the court. Same again as I said for, for cost matters where you settled Preiss issue um but need to start the formal court process and you start with the Apartheid claim form. You don't need particulars of claim for Apartheid claims. What you do um is you supply written evidence in support if you've got an infant claim uh with the claim form generally, if it's uh an infant claim. It will be uh a barrister's opinion in relation to the fact that the settlement um is uh is uh is right, is the uh rights and money for that infant is a fair settlement. Um Service are the same uh as under part seven, no difference there. Uh Defendant simply acknowledges the part a claim form. There's no defense to apart aid claim, nothing like that occurs. And then what happens is the matters listed for, for an infant's approval hearing for infant claims where everyone turns up to court um and the infant will be there as well. The judge will look at medical evidence and ask the infant things like you know, we'd say see you recovered it within two years. That would have been June last year. We are, are you still hurting? Does it hurt? Did you recover by last summer or whatever it may be? The judge has to be happy that the medical evidence is accurate and therefore, so the value of the claim is accurate before um they approved uh the sum for that infant um as I alluded to earlier in relation to um pay forms and making sure you've got 10, 235 a child or a protected party has to sue and be sued by a litigation friend. Um The court can actually grant permission for a child to conduct proceedings without a litigation friend. It is a bit unusual but that option um is there, however, that's only very likely when you've got a child who's likely to become of age very, very soon and they've got the requisite skill, knowledge and intelligence to be able to conduct the proceedings. Um, litigation friend, usually a relative. Um, but must be someone with no interest in mitigation, adverse to that of a child important to watch out for conflict. Um, there. Ok. So if you've got a situation where you've got mother who's driving the vehicle and the infant is a passenger, there's a collision and the infant suffers um an injury. Uh when you think about who should be the litigation friend, step away from the mother because if there's a potential that, that mother is liable for some part of that infant's injuries because she's liable for parts either in full or in part for the accidents, then what you're gonna be doing is suing the mother as part of the claim. You can't be suing the uh the litigation friend because the f that you're acting for your clients. So it takes someone who is completely uh nothing, no interest in litigation whatsoever. None involved. They take the father, take a sister, take an arm to whatever it may be. Perhaps as a litigation friend, as I said, with a litigation friend certificate of suitability needs to be completed as well. Importantly, just in relation to infants and how their claims um work is when they reach 18 cos they stop being an infant. The appointment of the litigation friend automatically ceases. They've got no further authority. A litigation friend is only there to help and give instructions whilst they're a minor. As soon as that infant turns 18, they have no involvement whatsoever. You can't be taking instructions from them. It's then time for the child who was a child who is now an adult to be uh given instructions in relation to their claim. So once that appointment ceases, the child reaches the age of 18, uh then you need to serve notice or the child needs to serve notice on their opponents that the appointment of a little allegation, friend has ceased. Um They have to confirm their address for service and also confirm whether they intend to carry on those proceedings. Interestingly, although I've never seen this happen in practice, if the uh child or now adult um fails to do so within 28 days, the date upon which the appointment ends, then the opponent may actually strike out uh their claim or defense. Um It's unusual rule, I've never seen it in practice. I can't imagine it uh happening in practice. But uh I say it is there as a uh as a potential to just make sure that you, when you have a child uh claim that you diaries accordingly when they reach the age of 18. So you know, the the steps you need to take and of course, in light of the fact that you now have a child who's become an adult. You need a new retainer because of course, the original retainer was signed by the litigation friend on behalf of the child. So the child, this adult will now need to have to say and sign a new retainer. You'll also need to check the funding provisions in relation to before the event insurance. You're after the evening insurance to make sure that they are still happy to continue to indemnify. Now that uh infant has reached majority in, invariably, they will be. But you just need to check that uh with the insuring just in case, be aware as well that when you've got uh a position where you've got defendant who is uh an infant. So in proceedings against a child or they're a protected party as well. A person may not without permission of the court, make an application against them before proceedings have started that whether the defendant's a child, a protected party or take any step in the proceedings, except issuing and serving a claim form or applying for the importance of a litigation friend. So what we have here is you could have a situation where maybe the defendant was 17, when driving that moped and they caused a collision. So if you sue them, but they're an infant, they're, they're 17 years old. Important thing is you can still issue and serve the claim form. No problems with regard to the invitation passing or anything like that. But that's where it starts because then uh the court gets involved in relation to the next steps. Cos the court will want to ensure that that infant, if they are being sued has a litigation friend to protect their interests in that for them in relation to parties to an action, you need to ensure that the party's full name and title is used. So, Doctor Mr Miss, whatever it may be, uh also that needs to identify sex. So if you do have a generic um surname and maybe a title like doctor. So doctor Tracey Williams, where it's not obvious as the sex of the individual. Then usually after that you put in brackets, male or female. Um or alternatively, if you're identifying Tracey Williams, Miss Mister Missus Tracy Williams, whoever it may be, you know, from in relation to Children, they sue as Miss X, whatever it may be, the child's name, a child by X being the the name of um their litigation friend, her litigation friends, you specify who they are as a child and the fact they're suing um by way of a, a litigation friend when they reach majority, then the claim is amended to say Miss X form your child. Now of footage, he's suing a business X trading as Y or X, the business name and in brackets then a firm. So sole traders should sue in their own name and not in any trading or business name, but not trading as is an acceptable abbreviation of uh of trading as, as well as we saw. Um earlier company needs to be identified by its status. It needs to make sure you identify the correct legal status for that company. Limited L LP PLC, whatever it may be um partnerships. So the claimant if they are a partnership must normally sue in the name of the firm rather than naming the individual partners and where the partnership is, the defendant claims must be brought against the name under which the partnership carry on business at the time of cause of action accrued. So, with partnerships and claimant to a defendant, you're really suing in the name of the partnership, not in relation to the, the individual names of the partners involved. It's your practice question that you act on behalf of the claimants in a personal injury claim. The pleaded value on your claim form limits the claim to the sum of 50,000 pounds. At the trial of the action. The judge considers a schedule of lost plead at 40,000 pounds and awards 35,000 pounds. The judge judge further considers general damages and awards the claim at 20,000 pounds. That's a total of 55,000 pounds, by the way, um which of the following best reflects the position on the court order. A the court will order that the defendant do pay the claim at the sum of 55,000 pounds within 14 days of the date of the order. Unless a greater period of time to pay is requested. B the court will order the defendant to pay the claim at the sum of 55,000 pounds within 14 days of the date of the order. Unless a greater period of time to pay is requested. The defendant is liable to only pay �50,000 due to the limit of the pleaded claim. C the court will order the defendant to pay the claim at the sum of 50,000 pounds. Despite the fact that the assessed order was 55,000 pounds, this is due to the limitation on the pleaded claim value. The sum awarded will be ordered to be paid within 14 days of the date of the order and it's a greater period of time to pay is requested. D the court will order the defendant to pay the claim at the sum of 55,000 pounds within 14 days of the date of the order and it's a greater period of time to pay is requested. The defendant is likely to appeal the award due to the limits of the plea claim. A the court will order that the defendant to pay the claimant. The sum of 55,000 pounds. A is the correct account. So the court will order the defendant to pay the claim at the sum of 55,000 pounds. Use a role within 14 days of the date of the order, unless of course, a greater period of time to pay is requested and then subsequently ordered by the uh by the courts. Um The other answers um wrong in relation to BC and D. The limitation on the claim form does not limit the award. The judge can give the, the claim that's important. OK. So just because it's limited to 50,000 pounds, doesn't mean to say the judge's hands are fettered and they can't either award more than that or it doesn't mean the defendant is only liable to pay the sum pleaded on, uh, that claim form, the limit on that claim form. Um, and of course, a uh, is correct. However, it doesn't, it isn't the single best answer because it doesn't go on to state. Um, the period of time within which, uh, the sum of 55,000 pounds is due to be paid as a more complete answer in relation to a. Thank you very much.

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Part 9 - Webinar

00:40:25

Hello, my name is Darren Hackney Green and this is Film Nine in the District Resolution uh series of films for the SQ A. Uh This film deals with the aspects of service of your and your claim form and also service of other documents during the course of um of litigation as well. So that's the three assessment criteria there and what you need to be aware of the service and time limits for, for servings proce serving proceedings also serviced by an alternative method and service of playing within a jurisdiction and also outside of a jurisdiction. And we're gonna look at um how that works in, add a bit more detail in a moment. So just generally in relation to service, um it's the formal notification of the uh claim upon the defendant. We're gonna park a little bit um services documents other than a claim form, they have their own separate sort of rules around. And so what we're looking at now and we're talking about um service generally, we're looking at service of a claim for the service of documents other than a claim for o obviously service of witness evidence, medical evidence during the course of litigation. Um They are dealt with separately. This is nearly all about now service of your claim for three core elements to be aware of in relation to service. We're looking at method of service, relevant step and deemed date of service and those things you need to be very clear of in relation to understanding the elements of service. So the rules provide for all it's called a deemed data service. A deemed data service is a second business day usually after the completion of the relevant step. So the purpose of deemed dates of service, if you think about it in this terms, um is when the next step is due. So your deemed dates of service is when the defense is due enlargement, the service is due and things like that or calculating the next steps in the action and they have nothing to do with regard to the service of a claim form in relation to whether you serve that claim form in time or not. OK. Dean D, the service are relevant in relation to that. They just look at the next steps uh to be involved. The relevant step um is what you have done to comply with the method of service. So every um method of service has the relevant step um in to accom in it. So you think about a method of service and an example, let's look at post. OK. Pop in the uh it's a postal service. Is a method of service. What is the relevant step in relation to that posting will leave the relevant service provider? He say that's how you work it out. Think about your method of service and other ones, email fax, et cetera, et cetera. And then you look at the relevant step in relation to that importantly, post hosting, leaving in the relevant service provider. Um Now in relation to compliance wise and with regards to service that claim form see in a moment, but your claim form once issued is valid for a period of four months from the date of issue. So that's important we've seen before that for the purposes of limitation when the claim form is received by the court and date stamped. That's OK. That secures a position in relation to limitations on the court receives a claim form and the court fee within that period of time before limitation, you're good to go. What will then happen is the court will issue court proceedings at a later stage and that's the next step. So the date of issue is when the four month validity period of the claim form starts ticking. Ok. So then you've got four months within which they affect service of that claim form. So importantly, in relation to claim forms, this dispatch of the claim forms must be completed on time must be completed within that four month validity period. So one of the relevant steps uh which I've mentioned here has to be completed by midnight on the calendar day, four months after the date of issue. Ok. You don't need to worry about the fact that when the defendant won, we received it within the four months irrelevance. Ok? Um In looking at calculating deem dates of service that could be after the validity of the period of the claim form has expired. Irrelevance. Ok. So what you're looking at is actually if you've got that claim form, you're due to serve it, the four months is up on Friday, you get that claim form, you take the relevant step um with regards to the method of. So if you post by popping it into the post and leaving it with the relevant service provider, so long as you've done that by midnight, they by before the expire of that four month period, that's ok. You serve that claim form in time. It doesn't matter if the defendant hasn't received that claim form before the expire of that period. What you've done is you've taken that relevant step within that period of time and that's important distinction there. What's important for you to be aware of though that's in relation to service of a claim form only don't be trying that when it comes to service of witness evidence and things like that. But we'll look at that a little bit later because service of documents other than a claim form, um deemed dates of service are important and vital in relation to this. That's this is in relation to service of a claim form only first said anyway, the original sealed claim form has to be served. Ob obviously, you can't serve the original sealed claim form if obviously you're faxing it or emailing it. And also, of course, you can't serve the original sealed claim form. If you don't have an original, you've just got an electronic copy. Um So it's a digitized copy cos you'll be issued online for whatever reason I said here, the claim form must be serving in four months of the date of issue. Just be aware of the different times scale should come on to in, in a moment. Even when you're serving outside of the jurisdiction, you get six months so that uh you get an extra two months to do that for um for the validity period of the claim for time for service of the claim form can be extended by a written agreement between the parties. Or alternatively, you can make an application to extend the time for service of the claim form. Um However, just be wary of that, um doesn't mean to say it's guaranteed um because you know, you're asking the court's permission to do something so the court may not grant it. And then by the time your application is heard your validity period may have expired and then you've got a problem cos you've got the invalid claim form. Um What I do is you can do one of two ways you can make the application, which is the better way prior to the expiry of the validity period of the claim form. Ok. So then you uh the court hears it beforehand all good to go. That's no problem. Assume the court agrees or you can make your application once the validity period of the claim form has expired a bit of a dangerous game. But you still, the court still has a discretion to agree to extend the time of validity even after the claim form has expired. But there's a different test in relation to that. So no test in relation to uh applying to extend the time before the validity of the claim form has expired. There is a test when you're um doing it after the validity of the claim form is uh expired. Uh where, and that test is where the court is where the court has been unable to serve the claim form. So the court's attempted to serve as failed to do so. So the attempts have been made or the claimant has taken all reasonable steps to serve the claim form that has been unable to do so that puts you earnest on you. If you're the one serving the claim form, all reasonable steps, that's very subjective there, which is why it's a bit of a dangerous game to wait until the end of the validity period. In either case, the claimant has acted promptly in making the application. So you've made that application really as soon as that validity period has expired. I suppose the only reason you'd make the application after the expiry of validity period is maybe that you have had assumed that steps be taken to serve and maybe it turns out that hasn't been successful and you're aware of that and the validity period has expired potentially. Um But in essence, you know, why wait for it to expire when the simplest method is to simply do it before that validity period expires and you, it's an easier job than having to do so afterwards. And of course, if um the court says no, you, you, you've got an invalid claim form in essence, with the cases dead in the water, the option of course is you can then issue again, issue another claim form. But of course, you have to bear in mind. Elements of, are you now outside a limitation? What about the duplication of um the issue fee involved as well? Cos that's when um your feet remissions become more important in relation to the cost involved with regards to that. Um So we talked about this, the, the methods of service and the relevant steps. You've been aware of those three elements of service method of service, relevant step and you're deemed it service a method of uh of service and the relevant steps required are set out here. So if it's first class post or DXDX is a sort of a uh a postal system which is signed up to by a lot of solicitors firms just makes it easier and cheaper to pay one fee on a regular basis. And there's an interchange between the DX exchange providers. And that's uh the first class of post version is by the relevant step is by posting, leaving with or delivering to or collection by the relevant service provider popping it in the post. In essence, uh the method of service fax. The relevant step is completion of the fax transmission and the same for email as a uh method of service. The relevant step is sending the email in relation to service by DX. If you choose that as opposed to by first class post, that can only take place if the defendant's address for service includes ad X number. It is on their letterhead and they've not indicated they will not accept service by DX. Just watch that because a lot of firms do have their letterhead uh where it states we do not acce accept service by email fax DX or whatever it may be. They tend not to put the X uh as a reason not to accept fax. Uh uh service by service by DX tends to be um fairly run of the milk to be perfectly frank with you. Um Also the rules deal with service of a claim form where you don't have uh a defendant who's given you an address at which to serve. And it lists out the various, uh, ways and places you can serve an individual, their last known address, uh, company, the registered office address, et cetera, et cetera. So it is helpful in relation to prescribed, um, places to serve. Um, if you have a defendant who hasn't given you an address for service where you can send the, the claim form. Um, so who serves? So if the court serves, then it's, it'll be by first class post and we saw in uh the previous film we advanced it issuing how you need to affect that, what you need to give to the court for them to be able to effect and service. If the claimant um serves, of course, you mark your claim for the solicitor to serve and you get everything back to you. So you can then go on and affect service. However, you need to file what's called a certificate of service within 21 days of service of the claim from a particular claim. That's just the, the switch, a document which tells the court what you've done, how you've done it. And the timescales involved noted for the court file. Um, within 21 days, what happens if you don't, in essence, nothing. There's no sanction for not doing that. But what it does mean though is you can't obtain judgment in default as against the defendant until you file the certificate of service. So you have a situation where um maybe it is a judgment in default situation, you're prevented from doing that and taking advantage of that unless you file your certificate of service, be aware as well. You may need to take specific instructions from your client if the method of service involved involves an additional cost and the client is pretty private paying. Uh And the example I gave there is the element of personal service as personal service comes at an additional cost, cos you're actually employing someone to actually have those documents attend on the defendant and actually hand those documents over by way of personal service. So personal service usually affected by something called a process server. Um You can't, and it's important here, you can't affect personal service upon the crown or the defendant's legal representative. So solicitors, you can't personally serve upon solicitors, rep uh solicitors. That's important distinction there. So what is personal service? It is basically um leaving the documents with an individual or a person holding a senior position within the defendant company. If it's a, a company itself, how it works here, the process server will go to the individual, takes the company director or the individual themselves will pass over the documents and say uh something briefly about what they are. Here's a claim form in relation to unpaid te uh unpaid debt by the claimants ex and hand those documents over. That means then that service is affected. If the defendant then, um, ignores the documents, leaves them on the floor, screws them up and throws them back in the face of the process server. It's irrelevant. Common law supports the fact that service has been affected by the process of uh, handing the documents over and mention what they are. Service is then g uh done. They's been left on the floor of the lobby of the, um, the company building. That's the, the defendant's problem. Uh Not yours, service has been affected, but you're also aware of service upon um companies. So, um it can serve upon a company, a company by any method specified under the CPR. So generally it on a register office address if it's a, a company, but also um statute uh allows you to serve a document on a company registered under the act by serving it up on company's registered office address. So, Fettis statute also supports the fact that you can serve on a company by this method, but also you can serve by way of statute under this method. So ETI assists service uh in relation to that upon a company. What about the correct address for service and the complications uh around this. So whether the claimants has reason to believe that the address of the defendant is an address at which they no longer reside or carry on business, uh then they have to make what's called a reasonable uh to actually take reasonable steps to make reasonable enquiries in order to ascertain the defendant's current address. Uh, if of course, they ascertain the current address, then the claim form must be served at that address because that's where they are. Um, it's always best to make enquiries. Um, obviously as to where the defendant is, if you have a suspicion or uh an understanding that they're no longer at that address. So for example, previous post during the course of um reaction protocol practice is returned to you, you know, returned to uh address set out on the envelope from the post office. Um However, there is a rule within uh the CPR or procedure rules that if all else fails, you can fall back on serving at the defendant's last known address. Of course, the idea is um, that if you make the inquiries, if you know the defendant's not there, you make the inquiries, find the new address. It moves the matter forward more quickly because if you utilize the last known address as specified by the CPR knowing they're not there. All that's gonna happen is at some point as a course of litigation goes forward, you forget, you feel judged or whatever it may be, you end, it will eventually come out of the woodwork to say I haven't had um uh these documents because they were said at my old address. And therefore I want to set aside default judgments. You could have a situation where you utilize the last known address, no response to the defendant cos they're not there. Uh, you then enter default judgment, you then proceed to enforcement to instruct the bailiff to go and attend the defendant's premises. That that's known address. Bailiff says, uh, they're not there. It's all shut up, but they are, um, we have made investigations, they're at this new address. If, by the time the bailiff then goes to that new address, the defendant's gonna look at the papers and go well, I didn't get them. So therefore I'm not satisfied in this judgment. I wanna set it aside. So that basically means if that is the case and then make an application for setting aside default judgments, you go back to square one. Yeah. How is that in your client's best interest? You could have made reasonable enquiries, got the correct address, serve them correctly and then started the process there. What you've done is elongated the process and cost by utilizing the last known address again. Default judgment, which ultimately has to be set aside because the defendant never received the, the, the claim form. The particulars of claim always think investigations are, um, are the best way forward and worst case scenario it can, um, of course, fall back on the last known address. I'll talk uh, a bit later about options in relation to alternative service as well, which is another option where the defendant has gone, maybe can't find a current address. Um, for them um, service by electronic means, you can only serve by fax or email when the defendant was confirmed in writing, they're willing to accept service by this means. And they provided a fax number or email address to be served at. And we've seen this since COVID, a massive increase in relation to service by electronic means. It's just the way forward. It makes it so much easier. And when I say service by electronic means, we don't rely on fax uh very much anymore. It's outdated. Uh I've got no idea. Even if my term fax number still works. Um Service by email is much more common direct. You can put read receipts, you know, it's been received easy to acknowledge. So that's really the, the way forward, but there has to be a direct agreement that serviced by that method is acceptable. You do find that a lot of defendants um are happy to be served like that. Um However, um a fax number upon the defendant's letterhead is considered express notice. So if the defendant has got their fax number on the letterhead, that means they're saying you can serve by fax unless there's been a contrary indication given ie uh we do not accept service by fax or email or whatever it may be. So that's where you look at facts on the letterhead, you can utilize that to serve out unless a contrary indication is given that doesn't apply to email, by the way, just because they put an email on the letterhead, you can't then serve them by email doesn't work that way and it does work that way if the email address is detailed upon a statement of case which is filed at court, but that won't assist you. Of course, in relation to service of your claim form because there will be nothing that the defendant would have filed at court until they've been served. The claim form that just assists with service of um other documents during the course of litigation, like your witness evidence, medical evidence or whatever it may be, um, be mindful as well. The fax number or the email must relate to an address within the jurisdiction and it's important to be aware of and that's in England and Wales, you can't be given an address, say a fax number in Glasgow and thinking it's a OK cos that's outside of the jurisdiction. Um As I said before, a lot of firms, even if they've gotten the letterhead, we don't accept service by email. My firm does. Um quite frankly, I contact all of my opponents and I'm happy to exchange things by email. It's so much easier uh for me to deal with things in that method, uh tends to be uh like a common agreement between parties. You see very, very often. Um Obviously, if you serve in a document by an electronic means, you don't need to serve a hard copy. So if you've got an original seal claim form. You need to see it serve the original seal claim form. But obviously, if you're serving by electronic methods by uh fax or email, you can't send the original. Um So it doesn't mean, so you send a copy in the post or anything like that, just service is one method only. Uh And off you go also in relation to service, it's not a scatter gun approach either. Um By the way, you don't go. Let's try fax, let's try email. Let's pop it in the post as well and hope one of them gets to the defendant doesn't work that way. You utilize the method you've chosen, you affect se service via that method and that method alone and that's how you proceed um be mindful with regards to the particulars of claim. So, um the rules mentioned about the validity of the claim from the service of the claim form within the validity period. Yeah. Um You have, it's a claim form that has to be served within that period of time. Uh You can serve the particulars of claim at a later stage, but that um is within 14 days, you can serve the claim form and then within 14 days, you can then serve the particulars of claim important distinction there though you can do that, but you still have to serve the particulars of claim within the validity period of the claim form. So you can't serve the claim form at, at midnight uh on or before midnight at four months to the day. And then think, oh, I've got an extra 14 days for the tickers of claim doesn't work that way. Tickers of claims still has to be served within that validity period. That's important to be aware of. And in relation to the next steps for the defendant to be aware of. The defendant needs to, needs to do nothing until they've received the particulars of claim. Ok. It's the particulars of claimants they need to respond to and it's the particulars of claim and service of those from which the deemed decks of service will begin to. Ok. So let's be aware of that. So service, the claim form has to be within the ability period and the tickets of claim when we are calculating the deemed dates of service, nothing happens from the claim form. Service date. It's from the date of the tickets of claim served if that's at a later stage than the claim form itself, contract is always worthwhile. Um looking at in relation to um most elements. So, um you were seeing this in relation to alternative dispute resolution, is there an arbitration clause? You see it in relation to how, where to serve, you see it in relation to jurisdiction as well. So often I'd say with a multiple choice question, if it is a dispute uh involving a contract, just think about the potential that contract can stipulate by way of the agreement prior to the, the issue which has arisen um how the meth, how the um the claim is to be progressed by way of ad R by way of service, by way of jurisdiction. The claim form can be served by contractually agreed method where the claim form provides that uh that if a claim form is issued in relation to the contract, it may be served by a method specified in the contract. And of course, the claim form contains only a claim in respect of that contract. I generally, uh you see it in matters, maybe you got international trade contracts. It avoids jurisdictional issues and generally within the contract, you'll have some stipulated about. For example, if there's a dispute arising ads in relation to this contract, then um please ensure that the claim form and resorting documents are served upon the solicitors at this address or by this method. So you've got a specific nominated firm. It's generally the way it works who are accepted, who are instructed to accept service of any documents and disputes and the purpose of that. Of course, it avoids when you've got jurisdictional problems if you have a defendant who is resident outside the jurisdiction. So maybe it's in Germany by having a contractual stipulation as a clause. It avoids having to get permission to serve outside the jurisdiction because that clause actually would specify solicitors within the jurisdiction who can accept service the complications in relation to jurisdiction come is when you need to serve outside the jurisdiction. Ok, if you're suing uh uh a company which is resident outside the jurisdiction, but the address you're given for service of the solicits is within the jurisdiction. You're good to go. It's no problem. The only problem comes when you're needed to serve outside the jurisdiction. Um, be aware in relation to service on um, solicitors. It's often more convenient to, to serve on them. Um, because you've already been in contact with them on the case to date. Um, be aware just as a reminder, you can't personally serve upon solicitors. Ok. That's one thing that you're doing. But interesting as well. If a solicitor has been authorized to accept service, you have no choice. You have to, you must serve on them. That's important to be aware of. The only time when you get away with not serving on them is where the document in question is one which has to be served personally. So, uh an inter injunction which has to be served personally, you cannot then serve the solicitor. You've got no choice. It has to be served personally and you can't serve a personal solicitors. You've got no choice. It has to be served on the defendant direct where you've got a contractual provision which excludes the service upon the solicitors potentially or the rare, uh or if the defendant is a company. So the claimant has the additional option of serving at the registered office address. But generally, why would you do that? Um, because if you have a solicitor saying, you know, we're interested to accept service, why would you send it to the registered office address as opposed to giving it, send it to the solicitors makes no sense really. But it is an option. Um, that's there. Generally the uh, solicitors would then not be able to take issue with an effective service if you served up on a company at the registered office address. However, if it were an individual, um and the solicitors were instructed to accept service, you and you served on the individual and they would take issue of uh ineffective service and they look and then challenge jurisdiction. We'll, we'll see that in a moment of how that works. So just in relation to the service out of the jurisdiction, um itself, we have this hague choice of court agreements convention tends to deal with those um international commercial um contracts. This is a way by the way of avoiding the need for permission to serve outside the jurisdiction. That's what you're looking at is if you have a defendant who's outside the jurisdiction, the first thing you need to think about is if you are having to send that claim form outside the jurisdiction near the court's permission. Ok. Exceptions in uh, in relation to that where the court's got the power to determine a claim under the Hague Convention and the defendant is a party to an exclusive choice of court agreement. Confirmed jurisdiction on that court. You avoid the need to serve outside the jurisdiction cos they're signatories to this Hague choice of court convention or the contract contains a term to effect. The court should have jurisdiction to determine that claim. So therefore, you avoid the need. Argue if there's a clause in the contract that you can actually ser uh and it states serving upon s um solicitors within the jurisdiction, you avoid the need then to serve that side of the, of the jurisdiction. Uh For case is not governed by the Hague Convention or contractual term, then the claimant needs permission to serve outside the jurisdiction. So what we're looking at with the Hague Convention and contracts was the fact that you're avoiding the need to serve um outside or to get permission to serve outside. Then the thought position is you need permission to serve outside. So firstly, the claimant must establish as a real issue which is reasonable for the court to try tends not to be much of a problem. A claimant must then establish that the claim falls within one or more of the grounds for obtaining permission. Uh Examples of those is where the claim is brought to enforce a contract that's governed by English law. Whatever reason over the terms of agreement, a contract are about that or whether breach of contract occurred within England and Wales. If the breach occurred here, that's one of the grounds for having permission to serve outside the jurisdiction in relation to tort, uh where the damage was sustained or will be sustained within the jurisdiction, uh where the damage which has been or will be sustained, sought from an act uh committed or likely to be committed within the jurisdiction where the claim is governed by the law of, of Wales or give justification for ability to uh have a ground here or to um serve outside the jurisdiction. We've seen in other films in relation to um where uh when looking at tort and damage was sustained within the jurisdiction. And don't forget, common law rules support the fact that when an individual has been involved in a tort say, uh road traffic accidents outside the jurisdiction, say in Germany, but then has returned to the jurisdiction and has continued to suffer symptoms due to their injury or continue to suffer losses, that's damage sustained within the jurisdiction and therefore would justify your ability to bring the claim here and therefore have permission to um serve the claim outside of the jurisdiction to uh against this individual who's residents in Germany also bear in mind. Of course, that the claimant must also demonstrate that England is England and Wales is clearly distinctly the appropriate forum. We've seen this in the films in relation to what's called forum, non convenience and forum conveniences, which is where this court, the court of England and Wales has to be the appropriate court to deal with matters. And of course, the example given before is the example about say the accident in Germany with the German driver on the autobahn. Uh if for argument's sake, there's a dispute over liability and there are three independent witnesses to the accident, all of whom are based resident in Germany and of course, the defendants resident in Germany, then you're not gonna get away with England and Wales being the appropriate forum because if you're having a look at the processes involved and having a trial, bringing four Germans over to the courts in England, the resultant cost of that translation and statements interpreted as a trial and things like that, that would dictate the fact that Germany is the appropriate form and for convenience, sits with Germany, not uh England in, in those given circumstances in relation to the application uh for service outside the jurisdiction. Don't forget this is application for service doesn't prevent you issuing. So simple fact is you issue your claim form um willing, I in essence, in relation to someone who's outside the jurisdiction. But of course, what you need to be mindful of is that you've got six months to serve that outside the jurisdiction and you need the court's permission to do so, the application like most applications supported by evidence and obviously can be made um and will be made without notice if the um order is granted, of course, as said before, you get six months to serve and service generally affected through the judicial, judicial authorities of the state. In question, um You have to link in the foreign process section of the courts of justice because there's such a thing called a Hague convention and that dictates the various ways you can uh affect service on uh an individual company within certain jurisdictions. And so, for example, it may be, I think in just you can do so through postal service or through solicitors. But in Turkey, you can only do so one way just to the judicial authorities of that company. So each country will have its different rules between the Hague convention in relation to how you can affect service. And that's what you need to comply with when actually serving the, the climate film itself. Um as permission to serve the defendant out of the jurisdiction is made without notice. Of course, the defendant may set large service apply to set aside service of the proceedings and of course dispute um jurisdiction uh as well, forum, non convenience as I explained earlier is a more likely argument you get to see in relation to jurisdiction claims um mentioned earlier, just be also aware that uh of alternative service. So if you have a position where a defendant has um gone from their current address, I said if we can rely up on the last known address, uh but you're making investigations and you can't find them, you can potentially utilize the benefit of alternative service. That's where it appears to the court. There's a good reason to authorize service by a method or at a place not otherwise permitted by the rules. So that could be that you don't know whether the defendant lives but you know where they work and you could, um, but service from their work address is not permitted by the CPR. The application for alternative service says you can and then serve at a place not permitted by the CPR if the court agrees and the court can make an order permitting service by that uh alternative method uh or at an alternative place, a different way of doing it, alternative method or an alternative place, a different place other than that stipulated within the CPR. So it's not just about where it's also about the method, how you serve that can be the alternative involved uh on an application under the rule of alternative service. The court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or as an alternative place are good service. It could be effectively that what you've done already constitutes good service. So what you may want to do is you can go for a retrospective permission. In essence, you know what I've done, please recognize that as good service or alternatively, we'd like to serve them at their uh work address. We'd like to take the steps to do that. So it's prospective, in essence, application must be supported by evidence as in most applications or all applications. Um Maybe, maybe that notice and the order must specify the method or place of service and the data once a claim form is team served as well as a period of filing a large of service, a mission or defense uh contesting effective service is very important on this um in an earlier film, but taking issue with valid service can benefit the defendant means they dispose of the case for good. Um So no takes issue with um service. It basically means they dispute jurisdiction that we've seen before. In order for a defendant to dispute jurisdiction, they get the enlargement of service. They tick the box, it states we intend to dispute jurisdiction. They and final and serve that and they have 14 days within which to make an application to dispute jurisdiction. If they fail to do so, then they're beholden to the court's jurisdiction. They're deemed to waive their right to contest jurisdiction. Examples. Uh In this situation, we service as to when they may contest jurisdiction um where you've got um a photocopy claim form that's being served, not the original and it's sent by a hard copy via post service by an inappropriate method where you've served by email. But the uh letterhead states we do not accept, take service by email there's no prior agreement in relation to service by that method always services at the time. So the uh claim for validity period has expired or you serve the claim from within time, but the particular is a claim outside that validity period, then you've got an issue in relation to effective service and the it takes issue in essence, it can do away with the case uh at the start. So that's all to do with service of a, a claim form. Um You know, that's important. We need to look at service of documents other than a claim form. This would be documents in the course of the litigation things you need to serve. So your disclosure list, as part of corrections, your witness statements, your expert evidence, all documents you need to serve during the course of the litigation. The rules are different in relation to um to those and the uh the core element is the deemed data surface are really important. So let's look at um method we're ignoring relevant step. Although the relevant step, um it is not relevant in relation to um the uh elements service other than of documents other than a claim for. So look at the list I've got here the method. So if we're utilizing first class post or, or DX, the idea is with that. So you literally a pop in that in the post that is the relevant step deem data service is a second day after it was posted left with delivered to or collected by the relevant service provider provided that date is a business date or if not the next business day after that. So if we're looking at a situation where your witness statements um is due on Friday, ok, so it comes to Wednesday and you pop that witness statement in the post. Ok. Deemed data service. Second business day, Thursday, Friday. You're ok. It'll be received on Friday. That's a deemed data service. And deemed data service is important. Even if it's not received on the, uh, on the Friday. The deemed data service is, uh, is the important date, Friday is the deemed data service. Therefore, you're, um, you're good to go even if they receive it on the Thursday, the deemed date is still the, uh, the Friday cos it's the second business day. Sorry. We know that that's fine. How about if we have a situation where, um, the document is due to be served a witness statement by Monday? Ok. Uh, it is now Friday. Ok. And you pop it in the post. Ok. Second business day. You exclude weekends. So exciting and Sunday not included. We've got Monday and then Tuesday, the second business day seems served on Tuesday. That's out of time because it was due on the Monday. Same f uh situation for argument's sake. Maybe it's due to be served by the Tuesday this time. And on the Friday you pop it in the post. However, Monday's a bank holiday. Ok. So Saturday and Sunday ignore, ignore the bank holiday because that's not a business day. Second business day, Tuesday, Wednesday is the second business day deem dates of service Wednesday. You're out of time cos it's due to be served the Tuesday. So therefore, unlike the claim form, documents, other than a uh, a claim form, the deemed dates of service are essential in re in relation to compliance with the uh the rules. So, um that's in relation to first class post. Um If we look at another method, delivering the documents or leaving it at a permitted address, and it's a personal service if delivered, delivered or left at the permitted address on a busy day before 4:30 p.m. that day is the deemed data service if after that period of time, 40 th 4:30 p.m. And that's a core time with regards to service of documents other than a claim from by the way, 4:30 p.m. So after that time, it's the next business day. Ok, fax or other electronic method, which is email deemed data service. If the transmission of the fax is completed or email sent on a business day before 430 then it's deemed served on that day. Ok. If it's after that, it's the next business day. So if you've got a witness statement due on Friday and you email it at four o'clock, it's ok. Assu assuming you've got permission to s, uh, to obviously the, uh, I agree service by email or they've got their email address and a statement of case, um, by four o'clock, uh, sorry, or by email, four o'clock. All good to go 431. You send the email on the Friday. It's the next business day, which means the Monday, assuming that's not a bank holiday, let's be aware of that. And same for a personal service here. So person before 430 on business day on that day, and the other one I said, mentioned delivering a document that you and leaving it on the front desk of the defendant's property or whatever. So all being aware of that 430 cut off. Uh So the 430 cut off is for delivering the documents, personal service fax or email. So be aware of that first class poaches are different and that's a second business thing. Let's try a question in this area. Then if you act on behalf of the claimants, the claimant obs instructs you to obtain an injunction as against the defendant company. Defendant is Tiago Limited who are carrying out drilling works next to the claimant's property during a 24 hour factory operation. The defendant has instructed a firm of solicitors to act on their behalf. This firm has written to you to confirm to f sorry to confirm that they will accept service of any court documents by email and email address is provided you make the application to court and obtain the interim prohibitory injunction and a return date which now needs to be served personally on the defendant. Which of the following best reflects the position on service of the interim interim injunction order. A, the interim injunction order must be served upon the defendant's solicitors personally. B the interim injunction order must be served upon the defendant company personally. C the interim injunction order may be served upon the defendant company personally or by any method permitted by statute D. The interim injunction order must be served upon the defendant's solicitors by email. D the inter injunction order may be served upon the defendant's solicitors by email or upon the defendant company personally beats the correct answer. Inter injunction order must be served upon the defendant company personally. Uh I made this question a little easier by the fact that I mentioned about the fact you've got an inter injunction order and how that needs to be served personally. Um In sqe it may not be as kind to you as that. It may be the fact. There's a couple of elements of knowledge there that you get an interim injunction order and you need to be aware that you need to serve that interim injunction order personally because that's a core element of knowledge you're expected to be aware of. You'll see that in a, in a later film when we talk about interim injunctions, um you need to be aware of that. And because you're aware of that core of knowledge that will then affect your ads in relation to service. I've been kind to you in relation to this one. They state and you need to serve it personally. Um, so why are the other ones wrong? So a, uh, you can't serve personally upon solicitors. Um, that's important. So you can't serve it upon them. C interim induction order may be served upon the defendant company personally or a method by statute. You can't, it's an interim injunction order has to be served personally upon the defendant. Um, must be served on the defendant solicitors by email. That's wrong because you have to affect personal service of the interim injunction order. Uh, and, uh, may be served upon the defendant solicitors by email or upon the company personally, defendant company personally. That's wrong because, uh, you don't have the option to serve it by email. It must be served personally upon the defendant company. Thank you very much.

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Part 10 - Webinar

00:24:47

Uh My name is Darren Hacken Green and this is Film 10 in the dispute resolution series four sqe and this film is going to deal with the issue of defenses just looking then at the SQE assessment uh criteria in relation to what you're expected to know for this area. Um various elements there comes under same as the case. I'll deal with separately in a separate film in relation to content uh of defenses and so on. Um But you need to be aware of how to respond to the claim, admitting, acknowledging um disputing jurisdiction which I deal with in another film as well as along with time limits. Uh I'll also deal with additional claims under part 20 as a separate film as well, right? So three main responses that the defendant can make uh once they receive the claimant's particular as a claim, they can deny liability. If they deny liability, then they can't just do a bear denial. They have to set out what their version of events is and the reason for that to die on, they can deny causation so they can accept uh involvement in the accident itself. Um But state that those events didn't cause the loss that the claimant uh has sustained. So, deny their actions were the actual cause of uh what's happened to the, the individual in question or they can deny quantum. She's denying the uh the nature and extent of the claimant's injuries or losses. It could be, the claimant is claiming for loss of earnings um for one year following a road traffic accident and it doesn't accept a year's worth of loss of earnings. But um accepts maybe three months, the owners have denied that the sums are involved, which are a claim by the claimants. And the defendant's defense will actually determine the, the next steps in the claim. So if it's a dispute on liability quantum and causation, then that may influence the trial time and also the uh the requirements in relation to disclosure, et cetera. Be aware of preaction admissions where the defendant makes an admission of liability during the preaction first score phase. They're bound by that admission. I'll move on in a moment as to how they get around that, how they can, what's re result from uh an admission. So missions can be of an allegation of fact, consequence of an admission is obviously that the uh neither party needed use evidence will go to the time and trouble of trying to prove that issue. So it narrows down the issues themselves. So as we've seen the pre action protocol phase, narrowing down the issues is really an essential element of pre action protocol practice. In order to be able to rely upon that admission, it must be express and written party will not be bound by a pre a mission. If it's not clear, an ambiguous as important distinction. That so what happens if you make a preaction admission as a defendant? And you now wish to withdraw that one, withdrawing from a preaction admission is called either withdrawing or resigning from a preaction admission. You can do so. Uh in two ways, you can do so with the consent uh to whom the admission was made or we can do. Uh or we can actually ask the court for permission to uh resolve from the admission. But of course, if you're gonna ask the court for permission that has to come post litigation, you can't do that pre litigation. If you've got a situation, maybe you're in the Preaction protocol, you've admitted liability. But then you realize that was done accidentally in error or without full consideration of all the facts. First step for you is to go to your opponents and actually seek their consent to withdraw our resolve from that admission. Um It would be in the other party's interest obviously to accept that if it was very shortly after the admission was made because it would have been no prejudice. But of course, if the other side, if the claimant refuses to accept or consent to that, then the next stage for the defendant will be to wait until Miss machines are issued and then make the application for the permission to resign. Um After commencement of proceedings, any party may apply to the court for judgment on the preaction admission. So, uh what will happen generally if they've got a preaction admission, the claimant will plead to that in their particulars of claim. It means they actually can avoid um paying the specifics of negligence if an admission of liability has been made. And as part of the directions which are sought, the claimant will seek judgment upon uh that admission in deciding whether to give permission for an admission to be withdrawn. The court shall consider various uh elements and lots of matters. The court needs to bear in mind in uh considering whether the defendant should have permission to withdraw or resile from their admission of liability. Court needs to bear him on the grounds for seeking to withdraw the admission, whether there's a new evidence that was not available when the admission was made. So saying he asked has come out of the woodwork, so to speak, which may the defendant change their mind in relation to that admission, the conduct of the parties, any prejudice to any person, if the admission withdraw is withdrawn or not permitted to be, be withdrawn. And that's the really key one there, the element of prejudice. So in that example, I gave you earlier, if very shortly after making the admission, the defendant seeks to withdraw it. Then you think about the prejudice cause of the claimant. It's a matter of maybe where the period of time is a short period of time where they thought the liability has been admitted. Um, and the prejudice comes in relation to the ability to investigate. So for argument's sake, if the defendant admits liability during the pre action protocol phase, quite early on, then what the claimant would do uh is in essence, make no investigations into liability. They happy defense submitted liability. It's not the fact that needs to be proved. They can move on. Imagine the situation. Then three years later, it readiness for limitation. Uh the issue court proceedings, the defendant now wants to resolve from that submission. Three years has gone by three years when the claimant could and should have investigated liability. Um, they could have obtained contemporaneous witness evidence, maybe with independent witnesses. So really the claim will be on the back foot there. And that's when you look at the elements of the prejudice which would have been caused um to the individual in question. And of course, you have to then think about comparing that to the prejudice to the defendant. We see quite often, um, that a claimant will bring a claim via a letter of claim, usually in uh sort of all utterly the other claim notification form. And, and of course, the defendant will look at that, make a judgment call commercial basis as to the value of the claim which has been presented and that can sometimes influence the investigations they do and whether they have liability or not. So generally speaking, a low value claim, there won't be a great deal of in depth investigation done because the value of the claim is uh of a low sum. If the defendant were presented with someone who is a tetraplegic, the defendant will want to make full liability investigations because even a 10% reduction on liability would be a massive saving on the compensation that ultimately has to be paid to the Clements in those circumstances. Sometimes we have situations where of course, the claimants um presents their case. Uh and it's the, it is of a certain value, but then things go all right, uh for the claimant things deteriorate and therefore the value of the claim changes significantly in those circumstances. Of course, that's where effectively new evidence and new circumstances come to light. And the defendant may want to then reinvestigate liability after admitting it early on because they thought it was of a limited value. Now realizing it isn't and it could be something more significant. They may wish to investigate matters uh, in greater detail. Uh Other elements the court will bear in mind what stage the proceedings have reached in particular, whether a date or period has been fixed for the trial. So that looks at, you know, the later the application to resolve in the admission, the less chance there isn't that being granted, in essence, the prospects of success of the claim uh or the part in which the admission relates. So the court will consider, you know, you want to resolve the admission of liability. Let's have a look at the circumstances there. What are the allegations you have to make in relation to um liability and why the claimant is at fault or partly at fault? And the judge, uh, the court will make a judgment call in relation to and also the administration, the trust of the administration of justice, the overriding objective of the sea will come into play there as well because we know any judicial decision you need to bear in mind the overriding objective as well. So, um, that's a preaction of uh admission and looking at resigning from admissions, admissions themselves is a, uh, a different thing. It's a way the defendant can respond to a claim that's being presented. So with the defendant, they have three options really when they have the particulars of claim served upon them, options are acknowledgment of service, a defense or an admission. Now, we'll look at the elements here that we can do with the acknow of service. By the way, you can have the acknow of service and then I see the admission at the later date as well, but we'll, we'll see that in a moment. So admissions may be made for the whole claim or only part of it. And the response pack which is served with a particular claim will actually uh contain the appropriate forms that need to be completed where only part of a claim is admitted, then if, then it will need to file a defense for the disputed part. And if they don't run a claim, it will be able to enter judgments in default in relation to that part which is not submitted. So the idea there with a mixed um bag, so to speak of admissions and uh disputes is maybe uh the claimant sues for three outstanding invoices. Um The defendant accepts that invoice one and two are due to be paid and outstanding. So wants to file the admission, but invoice 3 may be the dispute that the goods were um fit for purpose. Therefore, the defendant would need to file a mission for one and two invoices, one and two and then the defense disputing um the summons for invoice three, um when part or a whole of the sum is admitted, the defendant can either pay the admitted sum and we look at the benefit of paying it in full in a moment or request time to pay. The benefit of an admission is in essence, it um shows that you admit that there's sum due, but you're asking for effectively a period of time to settle um that debt. If the defendant does see a period of time to settle the outstanding sums. There's a means and incoming into outgoings form which is attached to the response pack. The defendant needs to complete, um, when it completes that, that goes to the claimant along with an author in, um, settlement on a regular basis, doing a monthly basis in order to, um, settle the, the sums which are admitted. Um, what happens then is the claimants will respond to that, consider that and say, well, that's ok. Effectively, the, the debt outstanding is 10,000 pounds and 1000 pounds per month. We'll accept that it will be settled within um 10 months or alternatively. Uh The claimant says no, 1000 pounds per month and certainly over 10 months is, is unacceptable based on your incomes and outcomes. You can afford more than that. Therefore, 2000 pounds uh is what we, we expect. Um If there is a disagreement in relation to the sums which are to be paid over the uh in relation to that submission, um then of course, the parties go to the court and the court will bear in mind that the income is an outgoings form completed by the defendants and the court will make an order in relation to the, the payments which are to be made on a regular basis um in relation to what you do by way of the admission. So the purpose of an admission really is to give the defendants a bit more time to pay. Uh a sum due which they have not got the ready funds to pay at this stage. So, um what the defendant needs to be aware of though uh is the consequences of that delay in settlement. So if uh admission is made, the claimant can enter judgments upon admission and then judgment will be registered in the register of judgments. And what does that do? It affects the defendant's credit worthiness. Registration of that judgment in question can be avoided if the defendant pays in full within 14 days of service of the particulars of claim. So therefore, when you come to give options to your client, which could easily come up as a a multiple choice question in the exam. If your client, the defendant has the means to pay an admission isn't the way forward for you just simply settle at that sum in full to avoid a registration of a judgment because that can have a detrimental effect upon their creditors. It's only when they need a period of time to pay because they haven't got the funds available. That's when you utilize an admission to your advantage. Um Defendant need take no action until such time as the particulars of claim are served upon them. That's important because as we have seen with um issuing court proceedings that um you can serve the claim form separately from the particulars of claim. Don't forget the defendant does nothing until they've got the particulars of claim. That's the thing they're responding to. That's when the deemed dates of service run from fix. A claim will have a response pack um supplied with it and the response pack varies. Um It differs whether there is a specified amount claimed or an unspecified amount. So a specified amount claim is where the claimant says you owe. Uh and that's the, the sum which I'm claiming so specified amounts will be your debt claims or your quantified con uh breach of contract claims where the sum of money which is pleaded by the claimants is finalized and finite. Um, an unspecified claim is your personal injury claims where you don't uh as a general rule value, um the some form of pain, suffering and loss of immunity, the general damages and state that's what you want. So that's why it's an unspecified amount because it's something to be negotiated between the parties at a later stage. And importantly, you need to be aware of timescales. This is really um important easily see this coming up as a multiple choice question in the exam. So, um we know the claim serves the particulars of claim and then what we look at is the deemed date of service of that. We've looked at um deemed dates of service and uh time scales in service in a separate film. But for the defendants, within 14 days of the deemed data service of the particulars of claim, they have to file either an a nod of service, an admission or a defense that's within 14 days. If they file the nod of service, then they have a period of time which is 28 days from the deemed date of service within which to file their defense or their admission. So the benefit of an, of an acknowledgment of service is it gives the defendant more time within which the father defense or their admission. What's important to be aware of is that time scale. So what you're looking at is not an extra 14 days from the date that you filed the launch of service, but you're looking at 28 days from the original deal date of service. So tickets are claim served. Um You have 14 dates in the deemed data service to file your acknowledgment of service defense or admission. And then if the acknowledgment of service is filed on day 14 or day one, then you have 28 days in the deemed data service within which to then file your defense or admission. Uh That's important to be aware of um those timescales so easily. They could come up as part of a question in sqe they could come up as a question, for example, as to the claimant's right to enter default judgment, you can look at the timescales involved in some dates. They, they could come up in relation to whether the claimant has entered judgment, a judgment in default correctly. Uh and an application to set aside, default judgments in light of the timescales involved within which the defendant had too far, their indulge to service or their defense. Uh, no defense is required if the claimant makes an application for summary judgments, we'll see this in specific applications, which is a separate film. Um And until after the hearing of that application or where the defendant disputes jurisdiction, um, that's an issue with regards to where the defendant disputes may be an issue over correct service of the claim. We've seen that as well. And of course, as you're aware, the difference in relation to disputing jurisdiction is the defendant has to tick the appropriate box on the acknowledgment of service that they dispute juris and then they have to within 14 days of filing and serving at a service, make an application to dispute the court's jurisdiction. Now, the difference there, that's not 28 days in the deemed data service after filing the no to service which disputes jurisdiction. It's actually 14 days after the date you file it not into service within which you need to make the application. So it differs there, it's ok. And once the advance is filed, then of course, the the the next steps are set in place which is the court case management powers and directions questionnaires are required to be completed by the parties. So, um extensions are possible for um the parties to agree and, and quite common in all honesty. So you've got a quite a limited period of time if you're thinking about a situation where you may have been dealing with an insurer, uh, in the pre action protocol phase, usual proceedings. It goes to the solicitors, they need some time to read the FARC and what to scratch in relation to things. Um, so they may request an extension of time within which to file their defense. That's fine. Uh, that's acceptable. Um, it's your choice to claim its whether you agree that is not, um, a given, um, maximum is 28 days, a further 28 days. So, don't forget you've got the 14 days, if not the service or defense can give you 28 days if you filed it wrong. So, or from the data service and you get an extra 28 days of 56 days in totality. And if you agree the extension, any period of time after that, the parties can't agree between themselves and the defendant will need to make an application to court for a further extension if, if that's what they uh wish to do as a very common, um, various reasons, taking instructions, reviewing the papers, consideration of settlements during this uh period before you file the defense to save costs and stop the, the ongoing litigation. And next steps which are required, um, if the defendant fails to file a defense, um or alternatively fails to file the acknowledgment of service or defense within that 14 day period or files the acknowledgment of service and then fails to file the defense within that 28 day period. And then the claimant can obtain what's called judgment in default. That basically, uh the idea is it says that effectively the defendant has failed to respond. Therefore, like an order basically says that the, the, the judgment is against them. Um Judgment actually precludes the defendant in defending the claim further. Um It's not permitted be aware where there are multiple defendants to an action in a situation that where there is joint and several liability, you can't have default judgment doesn't work that way. Um, a very useful tool and of course, in relation to that, don't forget with a specified amount and an unspecified claim, the specified claim, your judgment will be for a set sum of money which you can then enforce uh for an unspecified amount. Of course, its judgment on the liability issues. And then you still need to proceed to the assessment of um compensation damages. Um So the a lot of service itself, um when would you file that? Because of course, you don't have to as a defendant uh within 14 days as you know of the deemed data service, you can file the admission and defense, not the enlargement of service. If you don't want to, generally you file it um when you want more time as a defendant. So it gives you a, a further period of time. 28 days to file your defense or your admission. So that's usually um the m uh most common reason for doing so. Um It signifies as well to the court and the parties who's actually acting for the defendant. So it's a useful um tool for that administrative documents. But of course, it's essential if the defendant wishes to dispute the court's jurisdiction, you have to file the novelty service ticking that uh that required box in relation to that in relation to that. I think I mentioned it earlier, but it's worthwhile just um repeating that. So intend to dispute jurisdiction. Tick the appropriate box on enlargement of service. And then of course, you need to make your application to dispute jurisdiction within 14 days of the time that you find and serve that alarge of service, nothing happens. Then the case is stayed. No defense is due. It's important to be aware of by doing that. Even if the defendant doesn't file a defense within the 28 days. Um from the deemed data service, the claimant can't in judgments that we have to wait and see what happens in relation to the response to the application to set us uh to um dispute jurisdiction before uh the next procedural steps are taken if the defendant actually fails to make the application. So either they don't tick the appropriate box on the lodging of service or they tick the box which disputes jurisdiction, but then don't make the application within 14 days. And they're deemed to accept the court's jurisdiction and important points for the defendant. A lot of pressure and consideration at an early stage in relation to that element of disputing jurisdiction. Let's try our practice question though to act on behalf of the defendant to a road traffic accident, personal injury claim. Payment served the claim form 13 days ago and has just served the particulars of claim from your initial instructions taken during the Preaction Protocol phase. You're aware that liability is disputed and that the defendant has a counter claim for their personal injury. You contact the defendant, but their mother advises you that they have gone traveling and won't be back in the UK for another 30 days. What steps should you now take to a, you should file and serve an lodgement of service within 14 days of the deemed data to service of the claim form. Thereafter, you should contact the claimant and request an extension of time of 28 days to file and serve the defendant's defense. If agreed, you should notify the court in writing the, you should file and serve and a lodge a service within 14 days of the deemed data service of the particulars of claim. Thereafter, you should file and serve a defense based upon the version of events given to you by the defendant during the Preaction Protocol phase C you should file an uncertain enlargement of service within 14 days of the deemed data service of the particulars of claim. Thereafter, you should contact the claimant and request an extension of 28 days to file and serve the defendant's defense. If agreed, you should notify the court in writing D you should file and serve to service in 14 days. The deemed data to service a particular claim thereafter. You should file and serve a defense in case a claim based upon the version of events given to you by the defendant during the preaction protocol phase. And a you should file a servant at lodgment to service within 14 days. The deemed data service of a particular claim. Thereafter, you should contact the claimant and request an extension of time of 28 days to file and serve the defendant's defense. Right? So c is the um correct answer here, you should file and serve that lodgement of service within 14 days to the deemed date of service to the particulars of claim. So we know that of course, we 13 days ago, we had the tickets of claim, although we just had the tickets of claim, sorry. Um And that's an important point, of course. And the time deemed data service time runs from the date of service of the particulars of claim. And that's why a isn't correct because that takes the deemed data service of the claim form. Ok. So if a claim form of particulars of claim is searched separately, the deemed dates of service run from the particulars of claim being served. And thereafter you should contact the claimant and request an extension of time of 28 days, which is the maximum you're permitted to um request and then serve um the defendant's defense. Of course, you need to also include the counter claim on that as well as a reference to a counter claim in the um in the answer in your question. Sorry. Uh And if agreed, you should notify the court in writing the reason why you notify um the court that the extension is it avoids the court entering judgment of its own volition. If it thinks that the, the period of time for the independent to file, the defense has passed and there's no defense there very unlikely that you'll have that. And the court's much too busy to actually look at a military matters like that. But there is that potential, which is why you need to notify the uh the court. So what about the other answer? So a we uh dismissed because it says it miscalculates the Dean data service period. Um B and uh D refer to um drafting the offense and defense and county claim based upon the version of events given to you by the defendants pre and the pre action protocol phase, a dangerous game to do that. Of course, because you know, the defense and county claim is a statement of case, you will have a statement of truth up on it. Um You could arguably sign that on behalf of the defendant. Um, but as we've seen, there are various rules and things you need to do in relation to ensuring if you're gonna sign a statement of case, what you've explained to your client, your client's not there, he's on holiday for you to be able to do that. So that would really preclude you from signing a statement of truth and of course, with a defense and a can of claim without a signed statement of truth are not worth the paper they're written on in, in essence. Um and e uh is correct but not the single best answer. It fails to conclude that if you uh agree the extension, you need to notify the court in writing as I explained. It's very important. Thank you very much.

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Part 11 - Webinar

00:35:04

Hello, my name is Dan Hackney Green. This is Film 11 in the District Resolution Series four SQ A. Uh This film deals with the subject of additional um claims. So, um if we look at part one presentation here again, looking at the SQ RE assessment criteria need to be aware, purpose, structured content. Part 20 claims and defenses to those as well explain what these are in a moment. Um Part 20 claims, the terminology is surely speaking in a incorrect and out of date there. Um It needs to be mindful there. Uh So there's two ways to, to look at this. It's an additional claim, it's the correct um word and it's an additional claim under CPR 20 which is why we refer to it as being a part 20. Part 20 is sort of a colloquial way of referring to it. I noticed the um sqe does refer to part 20 claims but just be aware of that. Um The crypto terminology being an additional claim under part 20 the fact that the actual Part 20 claim itself both exactly the same thing. I'm not sure whether a multiple choice question in your exam is going to refer to the part 20 terminology or the additional claim terminology, same thing in the events. So additional claims are those where a defendant who, who's faced with a, a claim from the, the claimants may take no issue in relation to the uh the claim which is brought against them, but may simply say it's not my fault, it's the fault of some other party. Um who caused your loss is nothing to do with me. So, in essence, you want to pass on the buck, pass that blame on to someone else say that you need to deal with the, uh, the claimant's claim which has been presented, not me, I'm, I'm not the, uh, the parties responsible for, for their losses. And alternatively, you may have a situation where there is an argument of a liability and the defendant themselves have their own losses which they wish to bring within, um, that claim, either those losses against the claimant because they blame them for the cause of the cause of action, the, the, the accident itself or alternatively that they blamed someone else and also they've suffered losses as a result of the accidents as well. I want to um, blame the other person and effectively the additional claim process drags this other party kicking and screaming into the current litigation. So all matters are dealt with at the same time, seems very sensible to do that. All the matters and issues between the parties in, in relation to that course of action are before the court at the same time. Um As I said it here, correct on a largely additional claim where you do see part 20 claim uh used quite regularly. Um It's basically any claim which is initiated, uh other than by the claimants, additional claims can be claims in their own right. Um Or they can be claims. We sort of piggyback that of the claimants. We'll see the difference in the moment in relation to the different types of additional claim. So with some claims, if they piggyback, uh the the claimant's claim. So for example, the, um, claimant who's the defendant, the defendant just simply blames someone else. Then if the claimant's claim fails, that's it. Um The, there's no further claim to go forward because obviously, um the defendant is just passing on the claimant's claim to, to someone else, the, the third party. However, if there were a counter claim involved county claim have, uh has its own existence. So if something happens, the claimant fails to pay a hearing fee within a recorded period of time and their claim is struck out. Um, that's when the claimant's claim goes, but then the claim will continue on the counter claims, counter claims have their own existence. They are their own claims in their own right. In essence, the party who brings that county claim could have brought their own claim as the claimants. Um However, the claimant just got there first and issue proceedings first, which basically makes them the claimants and then the defendant, the one with the uh with the county claim. There are four main types of additional claim. We need to think about um cancer, cancer claim against the claimant cancer claim against a third party contribution or indemnity claims and an additional claim against another um person. These are a little complex. They do have uh a lot of similarities uh procedurally as well. Um What I've done which I'm going to share now is created a little bit of a bag gram um which hopefully will help uh explain um the difference between these different types of claims. Um Apologies for the, the scribble, I did get ac in G CS, er but I can hardly tell that. Um Right, let's look at these four different uh additional claims in detail. First one counter claim. So if you look at C and D here, C being the claimants and D being the defendants. So what you have is claimants uh makes a claim via that arrow as against the defendants saying you are responsible for my losses given and says uh no, um I'm not and also you are responsible for the losses. I have to incur so effective, they then make a counterclaim back against that claims. Now think about a scenario where that could easily arise. Imagine a situation where we've got a road traffic accidents. Um these are quite common for additional claims, road traffic accidents, by the way, I think it's better to use those as examples. Um, we've got a narrow lane, um, single carriageway, uh, one lane in each direction makes it big country lane and the claimants and defendants traveling from opposite directions, both going around a blind corner, maybe both going a little bit too fast and there's a head on condition. Ok. Fair says defendant, it's your fault. You're driving too fast. Uh Defendants say it's exactly the same to the claimant. Claimant suffers injury, sues the defendant for those um, losses. Defendant is also injured. So the defendant then sues the claimant back for a counter claim. So that's what happens there. Ok. So it's where the defendant has their own losses. Um And as a result of this counter claim scenario, if for argument's sake, uh, anything during the course of litigation, for some reason, the claimant's claim ends up, um, being struck out, then of course, the defendant's claim will continue of its own right? Because it's his counter claims are themselves, uh, they have a life of their own. Ok. So that will continue. Um, but even if the claimant's claim doesn't, and the same way, if the claimant's claim for argument's sake settles the defendant makes an offer in settlement, uh, part 36 whatever it may be and it's ended. But then the defendant's claim will still continue until such time as that their case is settled. That's a counter claim. Um Now we're looking at an additional claim. So again, um we've got C and D being claimants and defendants. TP is third party. By the way, what happens with these additional claims is part tw is when you're dragging somebody else uh into the proceedings, they're called a third party. And if someone else is then dragged in after that, they're called 1/4 party and fifth party and so on, that's how it, how it works. What happens as you see here, the claimants sues the defendants. Uh and then the defendant says, you know, nothing to do with me. Um So I'll just simply pass those losses and flow those on to the third party thinking about a scenario where this could occur. If we imagine again a, a road traffic accident, uh this time a single carriageway, one lane in each direction, claimant is heading up the road, defendant uh is heading the opposite direction down the road towards the claimants. And on the defendant's left hand side, there's a junction and the third party sat at that junction as the defendant approaches that the third party pulls out into the path of the defendant, the defendant swerves to avoid that third party. But in doing so, goes into the opposite lane and into a head on collision with the claimants. Ok. So then the claimant suffers injury and what the defendant says is, yeah, you sue me because I am the one who drove into your lane. I'm the one who drove into your vehicle. However, what I say is, it wasn't my fault. I did that because the third party pulled out when I had right of way and I had swerved to avoid them. And in doing so then, uh, I caused this, uh, accident with you. What you got there is in essence, the, and we think of additional claims, assuming under part prey is the defendant is literally just passing the book. Passing on that claim from the claimant goes. Claimant to the defendant. Defendant says, not Miko pass the book over to a third party. Now we get a counterclaim against a third party. Exactly the same scenario as we've got here. So claimants, oh, so sorry, I should have said in relation to um this one, the additional claim just dealt with this is the only one where you need a claim form, ok? The other ones, you don't need a claim form, any of the of the other additional claims. You don't need a claim form, ok? So that's important there. So in relation to the councils claim against a third party, so this is different against a cancer claim. It when it's against the claimant cancer claim against a third party. This is a different scenario. So what we have here, claimant sues the defendant. Defendant then says, not my fault and then drags in the third party but on top of that, the defendant has their own claim. For example, they were also injured in the accident. So the different series of I put in here CC, which is a county claim. So emergency exactly the same scenario as I've just had for the additional claim. So, um third party pulls out into the defendant's lane, defendant swerves to avoid the third party head on collision with the claimants. The difference is this one is the defendant is injured as well. So has their own claim for losses. So this is a situation where the defendant wants to make a counterclaim because of their own losses as against the third party. So that's the, the difference here not to confuse matters, ok? But this also will incorporate an element of an additional claim as well because not only is the defendant saying I have my own losses and third party you're responsible for those, but also the defendant will want to pass on the losses from the claimants as well. So it's a combination of the two, the core element you need to be aware of and the difference in relation to this character claim against a third party. It is the only one where you need the court's permission. He the other ones, other types of um uh additional claims, part 20 claims, you do not need the court's permission, do not need the court's permission if you do it at the right time, which is with the defense. If you do it at a time outside when the defense is due, then you do need the court's permission, but it can claim against a third party straight off the bat. You need the court's permission no matter what, no matter where we are in relation to the claim. And then finally, we have what's called a contribution or indemnity claim. This looks a little bit messy but I, I'll just explain it to you. So claim up there and what we have D one and D two, these are defendants, the two defendants in the claim. Ok. This is where the claimant has sued two parties saying I don't care who's responsible. You may both be equally responsible whatever it, uh it may be. Um Either way I suffered a loss and you are gonna have to sort it out amongst yourselves. In essence, um problem scenario there in relation to that could be a, a multiple vehicle pile up. So imagine a situation where claimants it's on the motorway. Um And there's a lot of traffic and behind her, we have defendant one and then behind defendant one, we have defendant two, claimant slows down and stops because the traffic is stopped in front of her. Defendant, one goes into the rear of her vehicle and then defendant two comes along and goes into the rear of defendant one's vehicle and then pushes defendant one into the claimant again. So the claimant feels two impacts, ok? So the claimant comes away and says, uh I've been injured uh as a result of these impacts, you know, uh how do we sort out who is responsible for what? Well, that tends to come down to facts and evidence, for example, was the first impact more significant than the second or vice versa. Um Either way, as far as she's concerned, she has one injury that needs compensating. Uh and that injury is a result of potentially both these impacts or a combination of the two. Therefore, she sues both the defendants. What the defendants will say. Of course, in that scenario is potential. They want to say, well, we're not wholly responsible or we should be at all responsible in relation to those injuries. So we want to claim it's got a contribution or indemnity from or between each other. So what happens is defendant, one will file, it's got a contribution notice against defendant two and defendant two will file a contribution notice against defendant one. What's got a contribution or indemnity? And contribution is where the one defendant will say you need to show the liability for the claimant's injuries and indemnity is where you say you need to pay in full for the claimant's injuries. Uh And then indemnify me in case I'm uh held responsible for anything because I'm not responsible for any of um these injuries at all. The important thing in relation to contribution of indemnity is you have to have two defendants. OK. So this isn't an additional claim where you actually drag in anyone else in because these two defendants are actually part and parcel of the same proceedings as it is the contribution or indemnity between the two defendants to the action. Right? So that's just a bit of an overview in relation to um the uh how additional claims look and work and we're gonna look at now is a bit of the minutiae uh behind this because of course, what we have are timescales fees and all those sort of things. So we're gonna go back now and look over each of those uh different types of additional claim in a little bit more detail. And now we're also gonna look at set off as well, which is a separate element which you need to be aware of because of the SQ assessment criteria. But um permanence of its own, it's a own, it's a compartmentalized box in relation to a different type of claim, right? Let's have a look then at um these claims. So first one is a counter claim against the claimant. So the example I gave you, there was a country lane vehicles approaching from opposite directions, there's a head on collision between them, ok. So the uh they both blame each other. So therefore, the defendant makes a county claim against the claimants in the same proceedings saying you're responsible for my uh for my injuries. Um Again, um it's, you raise a counterclaim because it's basically convenient uh and cost effective to do so in those current proceedings. And you don't have to, um, it's, it makes sense to do so. If you've got your own injury, why not, um, issue it, uh, and, and bring it within that claim. Also, as a defendant, you need to be aware uh, of issues of limitation as well because the claimant is issued just before limitation. Um You can't just wait for the claimant's claims to settle and then think about bringing your own claim because your own claim would also be subject to the limitation period as well. That's why of course bringing it within that claim because you, you're ok in relation to limitation as well. Assuming you do so within three years, what's also important to be aware of is um the cancer claim, um doesn't need to just be in relation to the same course of action. Ok. So it doesn't need to be all around that tort that uh accent on a uh uh a country lane, it can involve the same parties. So imagine a situation, arguably uh a little bit of fantasy, but let's um try this. So same situation, Country lane now, Country lane um collision. Maybe the defendant accepts. I uh I was going too fast and maybe I maybe responsible for the, the claimant's losses or alternatively, the defendant says, um I, I wasn't injured in this accident. However, the defendant is the claimant's window cleaner, uh, just completely coincidentally and the claimant hasn't paid for a year's worth of window washing, which is owed to the defendants. Ok. What the defendant can do is bring their county claimant for the unpaid window washing invoices within those same proceedings. The idea is because the parties are the same. Ok. Again, matters of convenience and things like that to get the parties the same to deal with all matters before the court at the same time, what happens is if the court feels that it really doesn't save time by having this breach of contract dispute or this debt action incorporated with a personal injury claim. The court can order the, the uh, claims to be separated, um, that can happen or it can have them all dealt with um, together as one go. What's important to be aware of though is the parties must sue and be sued in the same capacity. So where we have, um, claim the defendant and that window washing example, if the defendant, um, has set up a limited company to um, uh to supply window washing. So window washer is limited or whatever it may be uh invented or something. Um Then what that means is the claimant will sue the defendant but in their capacity as an individual to fee, to driving a vehicle. Ok. If the defendant then wants to sue for the window washing invoices, they can't do so because to do so. They would have to sue as a company because the company's um, debt which is owed and not that individuals. So therefore, they wouldn't be able to bring a counter claim within those same set of proceedings in that same example, that's worthwhile. Um, being aware of. Sounds unusual. But as we've seen S3 does like these sort of unusual or nuances in relation to the rort and could easily come up with sort of a multiple choice crash in relation to the options as to counter claim or, or not to counter claim. So just remember, it doesn't have to be in relation to the same cause of action. It can involve the same uh the same parties. Um You can um raise your counter claim uh without the permission of the court as long as you do. So with the defense, that's the same for all of these, say for a counter claim that it's a third party where you need the court's permission no matter what as I've said. Um So if you file or want to file a counter claim outside of the period where your defense is due, then of course, you need the court's permission. That's the same for all the other types of additional claims say for the council against the third party. In essence, the county claim doesn't form part of a separate document. It forms part of the defense defense and county claim to the action. Um And that's how it works, you have to pay a fee. So an issue fee for the county claim that's equivalent to the fee for issuing a new claim. So, um we've seen before with issuing that the court fees are based upon the losses. Um That's all claimed. So what happens then is the defendant will then work out what's the value of their pen claim based on their statement of value? And that dictates then the issue fee that needs to be paid for that pen claim. Uh No need to complete a claim form. Don't forget additional claims and depart 20. And that's the only one. We need a claim form. Great. So, um that's a counter claim, gets the claimant uh counter claim against a third party. This is the one that we, I gave the example of the third party. Pull out from the junction, makes the um defendant swerve and come to the opposite side of the road. But in that scenario, the defendant was also injured um as well. Um All the elements are there. Um I said the application, you need to make an application for permission. It can be made without notice. So that's fine. You don't need to put the parties on notice. We do so. Um And then if the court makes an order, it'll also make uh an order in relation to the, the next steps for your service and the next steps where things are due. But I should say as well, that in relation to additional claims, that's additional claims under part 20 a counter claim against uh another party doesn't come in place in relation to a counter claim and doesn't come into place in relation to a contribution and indemnity claim. What you need to do is when you serve um your documents, you also need to serve the documents that, that have been served upon you by the claimants. The idea is, of course, if you're passing the buck and saying that that claimant's losses, nothing to do with me. They um the third party faults that you're moving that claim on. Of course, you have to give the third party the documents which had been served upon you by the claimants, which means all their claim forms, its claim statements of case uh medical reports. Anything else that comes um with it, you need to move those and pass those on along with obviously your um defense, your county claim, your additional claim all get served on the, the third party. Um The directions are said in relation to the cat claim against a third party will include the, the next steps in relation to uh how matters progress in relation to the issue fee. Again, of course, you're gonna have to pay an application issue fee. Uh But also you pay a fee based on the value of the counter claim exactly like you would a counter claim against the claimants work out what the value of your counter claim is, and that then um dictates the fee that you need to pay um in relation to bringing the claim against the third party. Again, you don't need a claim form. It's only one type of claim where you need a claim form, which is the additional claimant of part 20. Although in the example I gave you, of course, the complication there, um which is often the case, Uh it's often not just co against a third party because you also want to be passing on the losses from the claimant to the third party as well as bringing your own claim. So therefore, that would be an additional claim. So it would require the claim for as well. OK. So just be aware of that um constitutional indemnity, you talked about this is a contribution notice which is needed. This is the multiple vehicle pile up two defendants in the action and then it's a claim between the defendants. Yet when it comes to contribution or indemnity, think about the fact that the existing parties to the action. So the defendants are there in the action as it stands here to bear that in mind. Uh Some of the contribution depends upon the extent and the the liability claim for the damage. As I said earlier, the difference between contribution, you want a proportion of the sums you pay for the claimants indemnity. You're saying it's nothing to do with the, you need to settle and the, the sum in full, um You don't need permission from the court again. Uh As long as you serve this contribution notice along with the defense, again, that's the key time there in relation to the, the defense. Um If you don't do so with the defense, of course, and you need an api again, that's the same circumstances for all the other types of additional claim, say for, of course, the additional claim uh against the cat claim against a third party. But of course, you need the court permission no matter what um for constitutional indemnity notice, no need for a claim form. And also there's no fee um payable. So simply a form you complete the constitution indemnity notice, no fee payable at all there. Um So then we have this additional claim. This is the one where you're passing the book. You don't have your own claim to bring a talk there about, you know, if you bring in another party and they're called a third party. I use that's the correct terminology, third party. You do hear part 20 defendant, part 20 claimants. Uh Th that sort of wording, be aware of that wording. Um It's outdated. Um But the trouble is because the pre assessment criteria refers to a part 20 claim. I am a little bit cautious in referring to the correct terminology which is third party and I'm not sure what sqe are going to use by way of terminology, but just be aware, third parties when someone's been dragged into the claim or alternatively, they're a part 20 defendant because they're just dragged into that claim. Part 20 claimant would be the person dragging them to the claim. The one making this additional claim in part 20 um try to make an additional claim without the court's permission. Again, if you do it with the defense, uh anytime thereafter you'll need permission of the, the court. The fee is paid upon the value of the additional claim. So the element here you need to be aware of, um is what's the value of the additional claim? Then the value of the additional claim is the value of the claimant's claim. It's in essence, in order to pass that buck on to someone else, you're paying the same issue fee that the claimant paid. Now, that means some circumstances dictate as to whether you do decide to make an additional claim if the additional claim doesn't have significant merit. Because of course, if the claimant has issued a claim for a sum in excess of 200,000 pounds, they're paid an issue fee of �10,000. Uh And in that situation, of course, that means your fee for bringing the additional claim is 10,000 pounds as well. Um So the defendant will need to think carefully about whether they want to incur that if they really do, think they should be passing on the buck to this other uh other party involved. What often happens and what's important during the preemption protocol phase is there would have been discussion about this. There would be discussion about who is responsible for um the accidents. And hopefully in most circumstances, the claimant would take AAA sensible view in the scenario gave you where third party polls out defendant swerves to avoid as a head on collision. The claimant would have taken a sensible view and sued both parties, both defendants equally to uh to save the time and trouble of then uh the defendant having to drag in someone else cos of course, the defendants will drag in another party as a part of the defendant or a third party that takes time and you elongate the process in relation to litigation if the claim is to simply sue two defendants, but that solves the issue, doesn't it? And also arguably if the defendant, one is blaming this third party for pulling out, then obtaining those details and being able to send a letter of claim to that party, you're gonna try and sort the issues out. Preaction. Are you the preaction protocol? That's generally how things tend to work. You only get this additional claim. Of course, where the claimant either doesn't want to bother um or alternatively thinks no, I don't care. You know, you are on my side of the road, you collided with me. It's your problem. You can sort it out with the, uh, with the third party. What you do need though is an additional, um, part anti claim form. This is the one where you do need a claim form on form N 211. Again, you don't need to know the, the name of the form um itself. Um When the court's permission is not required, the additional claim must be filed at court with the defense and served on every other party. We've talked about that before and of course, if courts mission is required, then you're gonna get subsequent directions. We've seen that with a council claim against a third party. Uh Either way it said you need to serve a response pack because whenever you serve documents, then uh you need the response pack with it, take, take documents, I mean, uh a claim form or uh an additional claim uh as well as a copy of every other statement of case as the claimant's claim should be brought against uh you as the defendants. Um important to be aware of is the consequences in relation to the next steps for the defendant have that d depend on whether it's an additional claim or whether it's a counter claim. Ok? Constitutional indemnity. You don't have to worry about that. Ok? Um There's no response uh required with regards to that when it comes to additional claim or a counter claim, whether it's a cancer claim against the claimants claim against a third party. There is a uh, a different rule. So if you f the counter claim must be served within 14 days of the date of service of the counter claim, you can't have a non of service in relation to cancer claims. Ok. That's important to be aware of. So you don't file a nod of service and get an extra 28 days from the deemed date of service in order to file your, uh, your defense, that counter claim, um if the claimant or the third party fails to file um a defendant to the counter claim, then the claimant can enter judgments or the defendant can enter judgments on that counter claim. So it's be, be aware of that, they can have judgments on the, the cancer claim itself because it has a uh leg of itself. It's a, it's a claim in its own right. That's why that entitlement um exists when you defend the counter claim. This comes really from the point of view. It's just a counter claim less really, I suppose a, a counter claim its third party. Um The claimant may serve a reply to defense, um, replies to defense can come in whether there's an additional claim or not. Um It tends to be when new matters uh arise as a um as a result of the defense. So for argument's sake, um ignoring the fact, there's a counter claim. Uh and the defendant simply defends the claim that's brought by the claimant but makes an allegation of a failure to wear a seat belt. So that's the element of contributing negligence in that situation. The claimant will want to um follow a reply to the defense because it raises a new issue, new issue in an allegation. They want to respond accordingly in relation to whether they were wearing the seatbelts or not. Or the response with regards to that pleading. Um The rules are that uh where there's no county claim, the reply is due with the directions questionnaire. Uh and what the consequences of not finding your reply. Nothing really. The defendant just is put strict proof in relation to the, the issues raised in the defense. So the issue of the, the seatbelt, it does make sense though to file a reply. Uh with regards to those issues with a reply, it's not for you to repeat the contents of your particulars a claim. It's the op opportunity for repetition. It's when new matters arise as of course, to the defense that you need this uh reply to respond um to those but again, optional, which is the important element there, either reply to defense um for the other uh additional claim, which is one of the claim form. It's the third party. They do file acknowledgment of service. You've got the claim form, the acknowledgment of service processes followed with the deemed data service. Same thing applies as you would just a usual claim which is brought with claim form, particulars a claim deemed data service, acknowledgment of defense due and the same periods of time as well. Um If a party against an additional claim is made, fails to either file acknowledgment of service within the requisite period of time or a defense in that requisite period of time or files files an acknowledgment of service but fails to file a defense within the requisite period of time. They're deemed to admit the additional claim and are banned by any judgment or decision in the proceedings as far as it's relevant to any matter arising in the additional claim. No right to default judgments. That's important. You only get default judgments on a counter claim, ok? But effectively the uh consequences you're deemed to admit. And again, like anything, um as we seen uh in a future video of these elements, and I think I've referred to previously in other films about the fact that we got relief from sanctions. This is a sanction effectively if you represent uh this third party and there's a reason there's a failure to respond, ok? You're deemed to admit. So therefore, what you would then need to do is apply for relief from sanctions from that. And then the ability to then defend that action also, we have set off, I imagine here it's a little bit on its own separate from an additional claim, but it's worthwhile being aware of it. It's important and again, something unusual which could easily come up in, uh, uh, you as a, a multiple choice question, uh, set off laws based on the common law basis. And the statutory elements here, uh, legal set off is a money claim that the defendant has against a claimant. Um, if the defendant that reduces or can extinguish the claimant's claim, the idea that the defendant sets off a sum which is due to them by the claimants as against what the claimant is claiming it um against them. So it, you generally see set off when you've got uh a contractual relationship between the parties. So there is an interaction between them. So they each have their own um losses to claim in essence, emergency situation where the claimant sues the defendant for an unpaid invoice totaling 10,000 pounds to say that um the defendant um checks their own um uh ba balance that information and realize that he realizes the uh claimant actually owes them for an outstanding invoice um totaling 5000 pounds. So what the defendant can do in that circumstance is set off the sum due um to them of 5000 pounds as against the uh the sum claimed by the claimant 10,000 pounds. But the balance of �5000 they need to deal with gets important. You're only setting off part of it, ok? You then need to deal with the balance. So the balance being, do you defend, do you admit what's the issue in relation to this invoice with which you, um uh which you haven't, um, set off in totality be mindful as well when set off exceeds the sum the claimants is claiming. So for example, claimant claims 10,000 pounds for an unpaid invoice, defendant has an unpaid invoice for 20,000 pounds. So a defendant can set off 10,000 pounds off. That invoice is effective. The claimant's claim is obliterated and goes. But because the defendant then has um an additional sum of 10,000 over and above what has been set off as against the claimant's claim, they have to make a cancer claim, ok? Because that's what it is. Cos that's an outstanding summit is due. You can't just get away with set off for an additional claim over and above what you're setting off as against the claimant's claim. Um We separate, it was set off. It's a separate course of action. The important thing is it has to be quantified a pleading. Ok. So if maybe the defendant has um a in that same situation doesn't have a uh uh due invoice which is owed by the claimants, but maybe has an argument for breach of contract over something. But those losses arising from that breach of contract haven't yet been quantified or assessed. You can't have that as a set off, set off is a finite identified quantified sum of money which is effectively just set off as against the uh the claimant's claim brilliant some look at a question in this area though she act on behalf of the claimant in a road traffic accident in which they sustained a personal injury. The claimant was a front seat passenger in a vehicle driven by their husband. The claimant's husband drove through a green traffic light and the defendant drove into a collision with a side of their vehicle during the pre action protocol phase. It is clear the defendant disputes liability as their case is that the claimant's husband drove through a red traffic light. The defendant was also injured in the accident. The claimant has just served the claim form and particulars of claim. What is the likely additional claim? The defendant will bring a, an additional claim of the CPR 20 B set off C A counter claim, C A counter claim against a third party, E A contribution or indemnity D and so a county claim against a third party. So what we've got there is the defendant is blaming um the driver of the vehicle, the driver of the vehicle isn't the claimant. The claimant is the passenger of the vehicle, defendant's driving the uh blaming the driver of that vehicle, but he the defendant has their own losses so they have their own claim to bring home county claim. So there therefore, they need the court's permission to counter claim against a third party. It would also incorporate an element of an additional claim under CPR 20. Um I'm not sure how we're gonna do this in relation to a question like this. Um It may be the fact that it would be the answer, an additional claim to part 20 a cancer claim, which is correct. But in general terms, the, the core element there is element of, of a, of a counter claim you need to be aware of uh while the other one's wrong. So a doesn't incorporate the fact that there is a, the tenant tenant has their own claim to bring, which makes it a counter claim. Set off isn't appropriate. You never have set off with an injury claim because of course, set off has to be a quantified sum of money and generally see set off when you've got a uh business dispute or debt action or breach of contract claim. Um Cairn's claim isn't right because the defendant isn't claiming against the claimant because the claim it's a passenger, they're not responsible for the accident in any way, they're not driving the vehicle. And of course, it's not a contribution or indemnity because with the contribution of indemnity, you need two defendants the action, the minute you only have the, the one defendant who's involved. Thank you very much.

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Part 12 - Webinar

00:44:59

Hello, my name is Darren Hack Room and this is film 12 in the series uh for dispute resolution for the SQ A. And this film is gonna deal with the issue of um statements of case that's looking at now, the E uh SQE assessment criteria in relation to this and what you need to be aware of. Um So the case generally specific elements in relation to pleading the claim specifically in relation to contract or to request for further information. Um and part 18 of the CPR and Amendments as well, amendments is um particularly complex, I think and difficult to understand cos it can go in various different ways, post service, post imitation, et cetera, et cetera. I'll try to simplify it a bit during the course of this film and I'll try and bring some examples uh to life for you, try and help uh understand and cement the understanding in relation to this right. Looking at statements of case it, it's a generic term, it means affecting a lot of different things, various different documents in relation to statements of case figures of claim defenses, additional claims applies to defenses, any sort of formal court documents, in essence, a statement of case will always be accompanied with a statement of truth as well. And we'll look at statements of truth in a bit more detail in a moment. The purpose of a statement of um cases to outline a party's case on liability causation and quantum of such core elements. It needs to set out the nature of the cause of action. The exact nature of the allegations involved financial consequences in relation to that. It is an outline, it's an outline of the pleaded case. The witness evidence adds the flesh to the bones in relation to the case. It's importance. It's a factual basis as well. This statement of case. So looking at specifics in relation to certain elements when it comes to interest, what the particular claim has to include is the claimant is seeking an award for interest. The uh reasoning for that and the justification for that, is it under the terms of a contract is a contractual clause, uh permission to um uh request a summit when for interest, a punitive element of a contractual clause? Is it under statute and enactments? And if so what, what statute if it's for a specified sum of money? So as we've seen before specified and unspecified specified is we have a finite identifiable sum of money which is being claimed. Generally, your death actions, you know, you owe me �10,000 for an unpaid invoice and that's a specified sum 10,000 pounds, that is what is owed unspecified would include your personal injury claims. So the, the sum in question isn't um, specified in that way because there's some injuries fly negotiated during the course of the claim. So if you've got a specified amount and you plead an interest, you need to calculate and state the, the rates percentage rate at which you claim that interest, the date from which he's claimed the date to which it is calculated, um which can't be later than the claim form is issued. So you can't go into the future for your, your interest at the point of um of issue. Also the ongoing um claim for interest. What is the ongoing rate that's been claimed as the matter proceeds the daily rate in relation to that and the total amount as well. So specifically in relation to interest, you have to set this out within your particulars of claimants basis. So the defendant knows they claim for interest interest, they have to meet the other benefit obviously, with a specified claim in pleading interest in that way is if you do have the entitlement to apply for default judgments, you can then calculate quite easily at the point at which you apply for judgment, the amount of interest to date and also, which is accrued since you've issued because you've got that daily rate pleaded within your uh your tickers of claim um T a claim if you're served separately from the claim form also has to include specific details. That's the name of the court, which the claimant is proceeding claim number, which is the case number given by the court, the title of the proceedings. So X uh the claimant versus the uh as against y the, the defendants and the claim is addressed for service uh as well needs to be stipulated on that. Just looking at some specifics in relation to different types of claims and what needs to be um stated, pleaded uh in relation to that. So if you look at personal injury claims themselves, first off, uh the particular claim has to stipulate the claimant's date of birth and also has to stipulate brief details of the claimant's personal injuries. So those are two requirements of um of the rules. Further. What you're also required is the claimant has to attach to the particular claimants schedule, uh details any past and future losses which they uh which they claim it's a schedule of loss which accompanies a personal injury claim where the cla claimant's relying on the evidence of a medical practitioner, the claimant must attach to or serve a tic as a claim, a report from a medical practitioner about the personal injuries, which they allege in their claim in relation to contracts. It depends whether it's written or oral contract. If it is a written contract, you have to exhibit the contract to the particulars of claim. If the contract was oral. Then the rules stipulate what you need to set at within your particulars of claim in relation to that oral contract, you need to plead um to the um where the con the contractual word which were actually used, spoken to uh formulate the contract um by whom they were spoken to whom they were spoken when and where they were spoken as far as stipulations there in relation to the oral contact things, you have to detail and set out within your particular sort of plan. Other matters which have to be un pleaded to specifically in relation to a particular claim are matters in relation to the allegation of fraud. Facts of any illegality, details of any misrepresentation because of unsaid of minor elements of undue influence and any facts relating to a claim for uh mitigation expenditure, all matters which really tie majority tied back into um all elements of contract law you would have um seen in other films and during the course of your reading in relation to um drafting the defense, which of course is another statement of case. Um as you've seen with previous films on the response pack, which is served with the claim form in particular as a claim and the other evidence served. There's a um a form which is your defense where you actually effectively is a bit of a gap you can fill in the gap, the nature of your defense rarely use it unless of course, you're dealing with a litigant in person because it's just not um space where you actually, you give justice to any form of defense to an action. Um You need a defense or so you can intend to defend all even part of the claim itself, the purpose of the defense. It deals with every material allegation set out in the particulars of claim. One of the stipulations for the sta statements of case, certainly particulars of claim is itemize in numbered paragraphs. The idea is you contain your allegations separately, so you do it in numbered paragraphs effectively. When the defendant responds to the particulars of claim, they can say paragraph, one of the particulars of claim is admitted. Paragraph, two of the particulars of claim is denied and, and the reasons for that denial just makes it easier to correspond back and forth. Um Always better with picks a claim as well. Don't just shove in loads of allegations into one paragraph. Cos it makes it difficult for the defendant to say, uh, admit that, deny that, put the claim strict proof in relation to that all the mixture in one paragraph. Try to set it out as best you and best you can. It's the easiest way to deal with it in relation to the response that tickers a claim, the defendant's got three options. Um Either admit the allegation, admit liability, admit some of the money is due, uh, admit they were driver of the vehicle, whatever it may be, deny the allegations. So, um, dispute, the fact that they uh were present, they were driving the vehicle that they were, um liable for the, the injuries or the nature of the accident circumstances. If you deny God, just deny, you have to go further and actually give reasoning for that. So for example, if you deny the claimant's allegations that you were liable for driving through a red traffic light stick, why you know the traffic light was green for you or whatever it may be. Also, the other option is neither admit nor deny and put the claimant to strict proof. Um When is it appropriate to uh neither admit nor deny it? Basically, you don't have the knowledge relevant to that, that fact itself, it may be the fact that the claimant states at following AAA road traffic accidents in the particular claim. The claimant is the owner of vehicle XY and Z. Um Although the defendant is aware the claimant was the other party involved in the accidents because they exchanged details at the time, the defendant may not have the knowledge that the claimant is the owner of the vehicle. They, they know that the driver may just be a named driver on their partner's policy. They just don't know. So in that situation may uh neither Mick nor deny. This is basically what the claim district proof in relation to the elements of uh ownership. Uh If an allegation can be admitted, then you should be admitting it, try and narrow down the issues between you and the parties. That's the, the important thing. Um and try in relation to that it saves time and um and cost in order. Uh honestly, so statements of case all include a statement of truth. If a statement of case is not verified by a statement of truth, it still remains effective. Uh Well, it remains effective but effective means nothing. If we, I'll show you why that is in a minute. Uh It was effective unless it court strikes it out, um which the court can do on its own initiative or on the application of another party. So if you serve a statement of base without a signed statement of truth, the court of its own volition can just simply strike it out. Or your opponent can apply to strike out that statement of case. If the same as the case is not struck out, the claimant will not be allowed to rely on its contents as evidence. So in essence, it's pointless having served that document. If you can't rely it contents as evidence in any event, the likelihood is though generally, if you've got a statement of case, you've served without a signed statement of truth, the other party will take issue with that and we'll do something in relation to that. Normally they give you a warning and that, which is reasonable. Look, we've had this document, it's not signed what you're doing and you have an opportunity then to rectify that. If you don't, then it's likely to follow that they are part to strike that, um, document out which can have a detrimental effect to the claim for argument's sake if it's the defense and the defense is not signed by striking out that defense course, entitles due to anti default judgments that causes a, you know, it's a, a large detriment to the defendant in that situation. Uh What about who signs the statement of truth? In essence, it's the party or the party's legal representative say for witness statements, the party's legal representative can't sign a witness statement on behalf of a witness. It has to be the witness uh themselves where a document is to be verified on behalf of a partnership who can sign the statement of truth, a of the partners or a person having the control or management of the partnership business. So it doesn't necessarily need to be the partners who sign it. It can be someone who's actually wrote in the management of that business itself to an employee for that purpose. What about, um, in relation to a company who signs a statement of truth on behalf of a company? It must be signed by a person holding a senior position in the company that's not stipulated. Although examples given such as uh a director treasurer, company, secretary, chief executive manager, other officer of the company. So it's basically as long as that individual thinks themselves that the appropriate person to sign that statement of truth and they hold a senior position, then it's uh in order for them to sign the statement to treat on behalf of that company, what happens if a solicitor signs a statement of truth. And as I said earlier, uh send me truth, save for that on a witness statement, the solicitor can sign the statement of truth and the statement when they sign it, it refers to the client's belief, not the the solicitor's belief. And that's an important distinction that the solicitor has to state the capacity in which they sign as a solicitor for um the, the client's the name of the firm. But importantly, they have to sign in their own name. So a statement of truth is signed in the name of an individual. Like for example, the company of the partnership, you don't sign in the name of the company, you're sign in the name of the comp of an individual on behalf of the company. If you're a solicitor, you're signing your name, but you're signing of course, on behalf of your firm and also your clients in relation to that. So where a legal representative signs a statement of truth, the following is taken as their statements that the client on whose behalf they have signed, has authorized them to do so that before signing, they explained to the client that in signing a statement to truth, they'd be confirming the client's belief that the facts stated in the document were true and that before signing, they'd inform the client of the possible consequences to the client and which should subsequently appear, the client didn't have an honest belief in its truth of those facts. Uh consequences referred to being obviously proceedings for contempt, of course, which may be brought against them. So in essence, that's advised about the ramifications of a, a statement of truth before you sign it on behalf of clients. If you look at the reasoning there and the uh steps you have to take as a legal representative before you sign a statement of truth on behalf of a client. Um It's a little odorous uh and isn't the easiest thing just to simply tell your client to sign the statement of truth and advise them of the ramifications as opposed to tell them of it so that you can sign it on their behalf. Um But the, the rules are there in case, maybe for some reason your client can't because maybe they're uh away on holidays urgent or they're away from their desk and it's urgent, you need to read the document to them or whatever it may be. There are some certain circumstances when you may have no choice, but generally speaking, the better way forward here is a statement of case, the party silence, statement of truth should be the individual in question the claim defendant or whoever it may be um referred to earlier part 18. We looked to SQ assessment criteria. Um The SQ assessment criteria states being aware of requests for further information. So that is the um the terminology we call it a part 18 request because it follows under um CPR 18. I suspect you're only gonna be needing to know that it's a request for further information. You don't need to know the part 18 or CPR 18 bit. However, there are certain stipulations within s where you do need to know a certain rule or case or whatever it may be. They give the example of Rylands and Fletcher for tours. They also give the example of part 36 when you're looking at formal offers during the course of dispute resolution. So that's a specific uh example given part 18, I feel um could be one of those we will uh we'll see later on part 20 for additional claims that could be another one of those. I just be aware, request for further information also knows a part 18 request just be I think just be aware of the um that terminology. So the idea behind a request for further information is to seek clarity behind another party's case as we may lack certain information that you need to understand or to be able to meet the claim presented or understand the nature of the defense brought. Um You can ask certain questions of your opponents in relation to that purpose behind it, clarification of any matter that is in dispute in the proceedings and or additional information in relation to any such matter, just be aware of terminology changing as well. OK. So we saw uh um we'll see in future videos as well. Um with applications, applicants and respondents with appeals, appellants and respondents with requests for further information. It's first party and second party. The first party is the one asking the question. The second part is the one responding to the question. The reason why of course is because it could be the defendant asked the question. Uh and not necessarily, the claimants were asked the questions. It just simplifies who is the one who's actually requesting the firm information and who is obligated or uh expected to respond to that? Uh That question, consider the best way forward in regards to request for further information you can see in a later film uh that summary judgment which is where you make an application saying that your opponent's uh defense or claim has no real prospect of success. Therefore, should be dismissed aio um consider in some ways whether that is the better way forward or alternatively a request for further information to clarify matters. But then actually following a request for further information, it may then strengthen an application for summary judgment. This could form part of sort of quite a good single best answer in relation to uh a question of rescue thinking about the steps you would take um to sort of um look at a good strategy for the claim. If you're not sure as to whether the claim has prospects utilizing um requests for further information can clarify that and can actually either support an application for summary judgment or make you make the decision that that's not cost effective, but it won't be successful. Uh As I say, you can always take the route of requests for further information and then actually some read judgment application thereafter. So what's the procedure? It's a written request to your opponent? Um There's no set form, nothing like that needs to be completed. It can be set up within a letter generally the, the way you'd see it processed. Uh Certainly, the way I practice is I do a separate document, separate statement of case, obviously the head of the title, the parties and the claim number. Uh I'll then have um one side uh divide into two columns on the one side, I'd have that question and uh opposite side, uh a space for then the defendant to complete the answer to that question assuming on the claimant to the action and you go through and at the bottom of that document is a statement of truth, cos the statement of case has to have a statement of truth. And therefore the answers that the defendant gives forms part of that statement of the case uh that's the way it works. And what happens as well as part of the rules allow that documents be emailed to your opponents upon request. That's generally the way you do it. Basically sending that document with a word document, makes it easier for the second party to complete the requisite part, sign it and then send it back as opposed to handwriting any sort of information within that document um itself. Um If the um party, the part 18 request is sent to the request for information is sent to. So the second party objects to completing the request for further information, they need to respond and, and say why they can of course, just ignore it. Um That's an option for them. But if there's an objection, they need to specify that they may object to the whole nature of any of the questions. They may object to specific questions there and say, look, I'll answer questions 13 and five, but two and four, we're not going to answer for, for whatever reason. It's not an issue in the case or not relevant or whatever it may be. If the second party doesn't comply with the request or um they object and the first party isn't happy with that objection, then you can make an application to court the application to court. Of course, forces the second party to respond to um the uh request for further information. Just bear in mind the nature of how to make that application we'll see later on uh in a different film. Um how applications are made and the process involved. But just be aware with applications, there's one of two ways it can be made on notice or it can be made without notice. So without notice is where you make the application to the court. The court considers that on the paper and then papers and then just grants it if it's successful and you get an order. Ok. And that order then, uh, has to be complied with by the other party, the second party, unless of course they apply to set it aside or vary. And they've got seven days within which to do that on notice is where you apply to the court, but you request a hearing. So the parties attend and then the objections to up to you whether or not the second party has to and please, they'll respond to this request for further information is considered just think about conduct, um, issues and whether you make the application on notice or without notice if you send the request to the second party and they ignore it. So you don't know what their response is or what their reaction is to that, uh, request for further information. And of course, you've chased cos you'd be expected to chase prior to filing into an application. Then in those circumstances, it's fine to make an application without notice. Ok? Because, um, you don't know what the second party's response is, they just ignored it. Uh in, in all honesty, if however you send the request for further information to the second party and they say no, we object, we object on these grants where it may be, you can't be making an application without notice. Cos that's a little bit disingenuous. You have to make the application on notice, make it on notice, cos you're aware there's objections to your request and those matters need to be considered and heard by the court before the court makes its decision as to whether those that request for further information does need to be responded to in full or in part by the the second party purpose behind. Obviously the response to that uh part 18 or the stress for further information, you're limited to answering the questions that are asked. It's not an opportunity to restate your case or introduce new allegations. Literally as a second party, you just responding to what has been asked of you purpose behind it. I think what the court will think about is, is the request reasonably necessary? Is it proportionate over an objective always considered as well? In order for the first party to prepare their case or to understand um their opponent's case, what should also be you should be aware of is you never use um request for further information to request documentary evidence. In practice. I see it all the time and I always go back to my opponents if they say to say no, no, no. A request for further information is a question that needs answering. If you wanted documents and you're in litigation, that's a specific disclosure request. That's a different application in itself. Purpose behind a request. For further information is simply that it is a question that requires answering. It may be the fact that you ask a question about the existence of the documents and then the second party responds about the existence of that document and that will then support a request for specific disclosure of that document. Well, that's fine. Um But the requesting for further information never includes the request for documents as well, right? Um Take a deep breath um because this is the element of amendments. Um and it, it just does get a little bit complex but I'll try and simplify it as best I can. This, I'll put here is a summary in relation to amendments and how you amend a statement of case core relevance to bear in mind is amending free service, amending post service and amending post limitation. There are different considerations you need to bear in mind. OK. Um You also have if we have at the top here, elements of amendments and then at some point that splits out into different types of amendments, which I I'll look at now. So if we're thinking about amendments prior to service, so you issued something, a claim form and you haven't yet served it. OK? And you're within limitation, then the general rule is you can amend Willy nilly. And I use that uh interchangeably, you know, it's a little bit um colloquial, but that's generally the impression I wanna wanna give to you. You can amend it how you like uh in relation to that. So, uh and with the amendments, that can be amendments as to the spelling of uh a party name as to adding an additional allegation of negligence or which contract it can be removing, adding or substituting a party. So that's amendments generically. So within limitation and with limitation, we download a separate video. So you know the periods involved and also prior to service, you amend it, how you like, then things get a little bit more complex as we move down um the line. So if you've then served, OK, then depends on what type of amendment you're making. So if you're amending the document itself, uh and you've served, then you can do so with the consent of your opponent or with the permission of the court, there's two options there, consent of your opponent or the permission of the court. The better way of court is seek your opponent's consent, saves you having to make an application. However, once you've served, if that uh amendment involves removing adding or substituting a party that's different, you can only do that with permission of the court. So that's what you're looking at is amendments generically at the top beer within limitation. Do it as you like. But then when you've served, that's when it splits down to the different type of amendment which is required. And if you're adding or substituting a party, permission of the court just amending it, consent or permission of the court. Ok. So that's, it's different, then it gets complicated in relation to limitation. So if you intend on amending and it's whether it's just the amendments we talked about like spelling error or adding or substituting the party and limitation has passed, then you need the permissions uh permission of the court and that's doesn't matter whether you've served or not. Ok. So if you are Preser but you've passed limitation, you need permission of the court to amend. Ok? So lots of considerations there. So just in summary for service and within limitation, do what you like post service within limitation. If you're amending, then you need uh consent of your opponents or permission of the court. Excuse me, if you're adding or substituting a party, permission of the court. Post limitation, pre serv sorry, Preser or post service, the permission of the court. OK. Sort of if you reflect on that, think about that in this summary, that's think's gonna help in relation to the next steps we're gonna go through when we're looking at the specifics behind amendments, what it looks like and, and how you do it. So um being first with the first element of party can amend a statement to case at any time before it's served as long as you're within limitation and that amendment can be adding or substituting in removing the party as well. How you do it is you um mark the statement to case as amended and you put the requisite date on it. You have to stipulate the relevant part of the CPR uh that you're amending under the rule that governs that you don't need to know the specific rules in relation to that. You just need to know, you need to mark that document as amended and the date uh on it as well once it's served, um the, the document in question, uh generally, if you look at claim forms, it's the probably the most, the easiest way to think about amendments with regards to statements of case. Um once served, you can only do so with consent of all the parties, all the parties there, more than one party involve in the defendants uh or the permission of the courts. You've got options there. So if your opponent says no, you're not doing that post service, you've got the option to go into the court for permission. If you um if you amend free service, then the idea is that what you do is you go back to the court and have that amendment spot sealed. Now spot sealed is basically a smaller version of a seal which uh, notes an amendment. Ok. So your, uh, claim form will have a seal on it and the spot seal is a ton, a smaller seal which is sort of dotted above, um, where the amendment is. So, for argument's sake, you've, you've misspelled someone's name. You've put Smythe into the Smith. You amend that you send the claim form back to the court. They spot seal the, um, uh, spelling era where it's been amended and then send that claim form back to you. So in essence, your claim form will then have the original court seal for the claim form and will also then have a an original spot seal by that amendment. Now that's ok, then you serve that document. What happens if uh that document isn't returned or in time for you to affect service within the form of validity period or alternatively, you know, you realize um the day before you need to serve the fact that you need to make this amendment. What the court rules um state is that you serve the original um version and also the amended version as well. So you set to cover your bases and common law case law supports. That's the way to do it. The better way of course is to realize you need to make the amendment, get it spot sealed and you just serve that one playful with that spot sealed amendment. Oh, he the original text need only be shown if the court consider it's a, it's appropriate or desirable. So how it works. If we use that example of the amendment for Smith and Smythe, you've put down Smythe, it should have been Smith. Then what you do is you cross out in red, um, the word Smythe, you then hand, uh, write in or type in words, Smith in red, underline that in red and that's the amendment show. Um, of course, it's desirable to do that. You don't need to do that. You can just obliterate the word. Um But generally speaking, amendments are best reflected by showing how those amendments are made. If the substance of a statement of case is amended, they need to be re verified by a statement of truth. So for argument's sake, if it's your particulars of claim, you're amending and maybe you've forgotten an allegation of breach of contract which you need to put in there. Maybe you've forgotten to plead to uh an allegation for breach of implied term or sale by description. Excuse me, then because that's a change in relation to the pleaded case, you need to have that statement of case then verified. So you've got the stable to truth which would have been signed by your client already. You then need um buy it reification and again, a further signature by your clients in relation to the amendments they follow in color order. So first off is red, that's your first amendment. If you amend the claim from that example. Um, and Smith to Smythe, that's the First Amendment red. Get that back if you then realize, oh, I've got it. Uh, the part of the address wrong, I've put, um, I don't know, Jones Road and which should be Jones Road. Um, so that's a second amendment and it's in green. Ok. Next amendment violet and then further you go to yellow. So there's nothing beyond four amendments. Hopefully. Um, you never get to that stage. In practice, I've only ever seen green um got to Goners where I go to to get a violet or yellow um color pen. Uh I haven't come across that in practice in any uh in any event. Good hope in all. I see that by the fact that these amendments were to correct sort of something you've done incorrectly largely uh that you wouldn't make that many amendments uh without correcting it in one, going in the events for the purposes of the Limitation Act. Um adding or substituting a new party or adding a new course of action is deemed to be a separate claim and to be of commenced to being commenced on the same date as the original claim. So the idea is you're adding a party to the claim or adding a new course of action, uh pleading in relation to breach of implied term of contracts. There's no element of effectively your opponent being able to say past limitation can't do that. We've got a limitation defense. OK? Because you've issued that claim form within limitation arguably. Um then it's as if it were being brought at the same time party applying to amend 70 case, usually you're going to be responsible for your own costs of doing that. And I say that usually because normally it's because it's a drafting error, you, you didn't read the file properly when you put Smythe instead of Smith. And that's when the error comes in. So therefore, you have to bear your own cost in relation to that. You may also have to bear the cost of your opponents if of course, you're amending a statement case, which then uh means they have to amend their statement of case for arguments sake if you've served and the matter's proceeding, and then you realize your particulars of claim um that you failed to plead as to imply term uh which apply to them by sale by description. So you amend the particulars of claim. You, uh your opponent has really filed their defense. Of course, they're going to want to amend their defense cos they need to plead to that new specific allegation of failure to um uh of employed to them by descriptions by description. Therefore, if they have to do that and the additional costs in relation to them doing that, you as the party amending your statement case, you probably have to bear that cost of doing that as well. Generally, uh if you can obtain your uh opponent's consent um, before making an application, that's what you do. So, of course, this is when you're Preser within limitation, sorry, post service, but within limitation, um get your uh opponent to agree to the, the amendment saves the, the uh need to go to the court to make an application, right? So what happens then if you want to make an amendment and limitation has passed either Preser or post service, you need the court's permission. That's the, the, the guiding rule there. So it doesn't matter if um your Preser or not limitation has expired and you need to amend um your statement of case, then you need the court's permission. So rules are, the court may allow an amendment whose effect will be to add or substitute a new, a new claim, but only if the new claim arises out of the same facts or subs or substantially the same facts as already been issued. So there, what we're looking at is when adding and substituting a new claim. That example I gave you of a breach of contract claim where we've, you failed to plead to breach of implied term of sale by description. Um It's a new claim. It's a new allegation of breach of contract and therefore it comes out of the same substantial facts and you should be ok there in that situation. Uh The court may allow an amendment to correct a mistake as to the name of a party but only where the mistake was genuine and not one which would cause reasonable doubt as the identity of the party in question. Um So genuine, reasonable doubt for that example, I gave you Smith and Smythe, arguably, you know, that really wouldn't cause a reasonable doubt if you've got Mr John and Smiley said, Mr John Smith and the address, there's no reasonable doubt as to the identity there. You just need to correct the um the error in relation to the, the spelling. Uh The court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started. So you plead incorrectly in essence or has since acquired. So that could be where you plead um as a child. So he's got an infant claim and then um limitation passes for whatever reason and that child reaches majority. Um Then of course, they can um sue as an adult and you amend the claim form to reflect that. So the the capacity in which they claim not via a litigation friend has changed. So that's amendments and we look at addition and substitution of parties. So don't forget Preser and within limitation, then amendment can include addition, substitution and removal of parties with um post limitation or post service. Then we're gonna look to need the court's permission. This is when things separate a little bit. So on occasions, it's necessary for another party to be added to a claim for one party to be replaced by another. Excuse me, if the stay, the case has been served in an application for permission to remove adult substitute, a party may be made by an existing party or a person who wishes to become uh a party as well. Why would then um you have someone who wants to become a party to, to acclaim, you tend to have it when we have issues on in relation to indemnity and with the goal of road traffic accidents. So you um are involved in a road traffic accident. As a claimant, you sue the talk fees of the defendants. Um but as an individual, but the defendant maybe was drunk uh whilst driving. What that means is it invalidates his um policy of insurance. The insurer will still settle the losses brought by the claimant because they're uh are what are called an RT A insurer. There's an obligation the policy is in existence. Therefore, they have to settle their liabilities under that policy. What it means though, when there's this indemnity issue in the act of RT A insurer, it means they can pursue any losses they pay out to the claimant from their own policy holder, the tort visa. Um because of the fact that they were driving otherwise in accordance with the policy, cos they're driving whilst under the influence of, of Trink, which would tend to validate an insurance policy, a motor insurance policy. So what happens? And what is required in that in those circumstances is the insurer will want to take an active part in the proceedings. They'll want to be able to settle, negotiate, potentially instruct their own medical experts in relation to the claimant's claim. So that involvement, it may be the fact that they're not party to the proceedings. We've just sued the tort visa. So therefore their applications to be added to that as a second defendant, it gives them the right and a voice in the proceedings. And ultimately, what they also need as well is a judgment against that first defendant, their policy holder at conclusion, which enables them to then actually pursue their policy holder for the amount they pay out to the uh to the claimants. Generally, if you run your cases, well, you won't meet that scenario. And because I will always be aware when I'm dealing with my opponent. If there is an indemnity issue, then when it comes to litigation, I will sue the Talk Visa and I will sue them the insurer as the second defendant to avoid this sort of issue. But if he does arise and you've only sued the one that's the uh example when they're a non party and they can apply to become a party and to the um to the, the action that's brought, applications can be made without notice and must be supported by evidence. While applications must be supported by evidence, nobody can be added or substituted as a claimant unless they've given their written consent in writing and that consent has been filed with the court. So the court may order a person to be added as a new party if it's desirable to add the new party. So the court can resolve all the matters in dispute in the proceedings. For example, that indemnity should be looked at with regards to the surer coming on board and we've got the to visa, uh or there's an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings. And it's desirable to add the new party so the court can resolve that issue again. The issues of indemnity could come into play there. The court may order a person to cease to be a party if it's not desirable for that person to be party to the proceedings. Whatever reason that may be, uh the court may order a new party to be substituted for an existing one if the existing party's interest or liability is passed to the new party or desire or to substitute the new party so that the court can resolve the matters in dispute in the proceedings. When we see an existing party's interest or liability, passing to the new party, that could come by way of a vous liability situation where it's chy scenario and the uh the employer becomes a different uh uh entity in itself or you could see it where you've sued a defendant who then subsequently dies. Um Because then the liability passes to the estate because the deceased has no local stand on in themselves. So we see that specifically in relation to post limitation in a moment. That's another example of that situation with the need to add a removal, substitute a party. So that is when you need permission, obviously post service, you also have special provisions in relation to the expiry of the limitation period. So court's permission as we know is needed for that um Scenario, court's position is need uh permission is needed whether your post service um in in any event for removal of a substitution of a, of a party. But certainly when it's uh outside of limitation uh than pre or post service in the court's permission, the court may add or substitute a party only if the relevant limitation period was current when the proceedings were started. Um The additional substitution is necessary. So what is necessary was defined as necessary? Well, that's where the court is satisfied that the new party is to be substituted for a party who was named in the claim form in mistake for a new party. So when do we name someone in mistake? That's less about Smythe and Smith cos that's a spelling error. It could be where you've pleaded against um Mr John Smith, who's the owner of the vehicle, but it turns out he wasn't the driver, it was his son, Mr Robert Smith who was a driver. And that's the, the issue that's arisen there. You're suing someone who isn't liable and can't be liable in negligence because they weren't driving the vehicle. They're not the tort fees. The claim cannot properly be carried on or the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimants or defendants again, the wrong to fees. Um The original party has died or had a bankruptcy order made against them and their interest or liability is passed to the new party as we saw earlier about how you can do that with regards to someone who has died, the interest passes to the estate. Same way with regards to bankruptcy or the interest passes to those um, trustees in bankruptcy. Be aware of that where a party has amended their statement of the case without the court's permission. So, uh before service and um within limitation, the court may disallow the amendments. Uh, a party may apply to the court asking it to exercise its discretion to disallow that amendment within 14 days of service of the amended statement of case. That's amendments uh admitted a lot to remember there. Hopefully, the examples I've gave you simplified it uh a little bit but it, it can get a little complex there from that summary screen earlier on that's the best way to try and remember how to deal with amendments. So just finishing off with elements of convictions and how you can utilize those to your advantage. So, um you can rely upon a conviction uh as an issue in a civil case. So it's a criminal conviction and how you can utilize that your advantage in a criminal case. You see it a result of road traffic accidents all the time. So whether your opponent has been charged with may be driving that due care and attention or whatever it may be or driving under the influence. And you want to rely upon that conviction as a way of proving negligence uh in the, the civil claim, you're able to do so. Ok? There are specific uh specific rules in relation to that though what you have to plead to, I suppose what the particular claim has to include. So a claimant who wishes to rely on evidence when it says a claimant, by the way, the, the rules do say a claimant may, it can work the same way, ok? If it's a claim against the defendants. And interestingly, the claimants brought the claim, despite the fact that they were the one who was convicted of driving out due care and attention, then the defendant can also rely on that conviction. So claimants who wishes to rely on evidence of a conviction of an offense must include in that particular of claim, a statement to that effect that they want to rely upon that conviction. But also give the following details, the type of conviction and its date type of conviction driving out due care and attention and a specific date, the court which made the conviction walks or magistrate's court or whatever it may be. And the issue to which the claim relates and the issue to which the claim relates is always going to be probably more likely going to be issued in relation to civil liability. Has said the wording for the CPR C is claimant the defendant, it could apply equally that way. Right. Let's try a practice question in this area to act on behalf of the claimants will claim for breach of contract. The claimant contracted with the defendant for a supply of hot dogs at a music festival. The contract was oral and allowed for the defendant to charge the claimant's eight per day plot fee for the claimant's stall and a percentage recovery of the claimant's net profit 10% after the festival. There was a dispute as to the rate applied and the percentage deduction from the net profit. You're now drafting the particulars of claim for the claimant, which of the following best describes how it should proceed. A, a copy of the contract should be exhibited to the particulars of claim B the particulars of claim should include the contractual words used and state by whom to whom when, how and where they were spoken c the particular claim should include the contractual words used and state by whom to whom when and where they were spoken. D the particular claim should include the contractual words used and state by whom to whom and where they were spoken. A particular claim should include the contractual words used and state by whom when and where they were spoken. C is the correct answer. It incorporates all the relevant elements there where you've got an oral contract um by whom to whom, when and where they were spoken, obviously the core elements there. So a um it says by exhibiting a copy of the contract, but of course, we know it's an oral contract. So there's nothing to exhibit those rules apply when you have a written contract which you're relying upon. Um B includes an additional word which is how uh and that's wrong. You don't need that um uh word. That's not what the uh particulars of claim rules state within the CPR and in relation to D and E, they're both missing a, a key word and D's missing the word when they're spoken and e is missing the word to whom um they were spoken. Thank you. Ouch.

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Part 13 - Webinar

00:46:07

Hello, my name's Darren Hackney Green and this is film 13 in the series of films of dispute resolution on the sqe uh this film is going to deal with case management and um allocation. So first thing I'd say in relation to this, just looking at the sue uh assessment criteria, this has changed recently. Um It's been updated, in essence, it's been updated in relation to the intermediate track uh which is referred to there before. Uh it was the fast and multi tracks. We've had a new um track um inserted there in relation to it came into force in October 2023. So it's been there for a little while now. Um you'll find depending on the uh course materials. You are looking at some books, uh textbooks on this area will be out of date if you're not careful because this is a relatively new um thing which has come up. And as I say, the sp assessment criteria has only just updated uh the criteria to, so you need to know about this additional track uh the intermediate track. So looking at case management in general, um case management is basically management of the case by the court does what it says on the um on the tin, the information you set out within your directions questionnaire helps convince the court to agree with your suggested directions. Uh brain way as a court will uh manage a case can include various elements identified and disputed issues at an early stage and how those issues are to be presented and proved, giving directions to ensure that progress of the case is efficient fixing dates in a timescale for each step to be undertaken. So as to make the case trial already controlling costs by way of budgeting or capping, we've seen both of those in practice in uh other films disclosing our cases summarily whether they disclose no claim or defense. You're gonna see that in relation to summary judgment uh with regards to specific applications in film 19 expecting co-operation between the parties dealing with matters without notice and ordering in a state to encourage settlement. And again, just reflecting on that um encouraging settlement, they can't force the parties to undertake ad R resolution. They can only encourage um that process. So lots of options open to the court and what they can do in relation to the exercise of their case management powers basically involves a judge getting to grips with the core elements of the case and thinking about. Ok. What are we looking at here? How long is this case going to take to to go to trial uh if we allow all of the witnesses that the claimant wants, it's gonna be maybe a four day trial. That's disproportionate. The claimants can only have four of the witnesses they've suggested mainly because maybe a lot of those witnesses say exactly the same thing. So for argument's sake, they are quantum witnesses in relation to the care that the claimant has been given. Uh that evidence could come from the claimant themselves. And one of those witnesses who provided the care to support that not every witness who provided that element of care but also a thought process. The court will go through looking to case manage with the elements of proportionality in mind as well. So what and when his case management, case management occurs at any time in an actions progress, post litigation is most common at uh allocation at AC MC. So it's a case management conference or AC C MC which is a costs and case management conference. The difference there is a cost and case management conference will be a multi track claims because with costs there, they expect an element of budgeting to be in the budgeting exercise to be undertaken. So that's why it's AC C MC when a party makes an infra application and further directions are required once the application has been heard. So that could be where a party has made an application for summary judgment. Once the application is made, everything gets stayed, if it's before the defendant files the defense, then there's no need to file a defense until the application is heard. Then of course, if the application is unsuccessful and that application were for summary judgment upon the claimant's claim that it, it revealed no reasonable prospect of success, but that application has failed. The court will then set down future directions for the further management of the case. The court can set down directions or orders or sns of its own volition and very rare. Uh and the judiciary to be perfectly frankly, they, so basically what's going on, the fact that there's rarely time they could actually manage the cases in that sort of progressive manner. So the first step in relation to case management, progress and aggression through the litigation process is once the defense has been filing or the date for the date for uh the defense to be due has passed. Uh the court was sent to the parties, what's called a notice of proposed allocation. So that's basically indicative of the track the case is likely to be allocated to, uh that's really taken from the claim form, the front page of the administrative document, the front page of the claim form M one which has been completed by the claimant. So that would be indicative based on the value of the claim. So if the value is pleaded, as say, for argument's sake, in excess of 200,000 pounds, then the proposed allocation will be to the multi tracking line to the value we'll look at values and, and allocation based on value uh later on. And in this film, that's how it works. And even though uh it's in order for a notice of proposed allocation doesn't mean to say it's correct, the court could have got it wrong and it's only proposed allocation. The case hasn't yet been allocated to a track that requires a subsequent order, either a hearing and then the order following that hearing or just simply an order uh made by the uh by the courts. All we're looking at at the moment is a provisional allocation based on the the claim form stated value accompanying the request of the proposed allocation uh is a request of the parties too far their directions questionnaires by a certain date. Normally within 28 days, the deemed data service of the notice of proposed an allocation for fast intermediate and multi track matters. I'm not talking about small claims track. Uh Even though that is there is 1/4 track which is the earliest track of sport claims matters because that's not on the sp assessment criteria. The reason it's not on there is because small claims trap matters generally don't the, you don't abide by a lot of the rules in relation to the CPR. They don't apply CPR 36 doesn't apply. Part 36 offers disclosure 31 doesn't apply as the set of rules go in relation to CPR 31. So I think sq have dismissed the element of a small claims track and you've been needing to aware of that because it really does give less scope for, for good questions in relation to what uh you're going to talk about with. You, go to answering questions about the application of the CPR and the rules themselves. Um So this directions question, you see a form which is needs to be completed by um both parties or all parties to the action. So the form N 181, you don't need to know necessarily the, the form uh itself. If you have a claim which has started online via the BBC P the Damages Claim portal. Uh then there's an online version of the same form. It's identical, uh just affecting you fill the boxes in online and complete it that way. No fee payable for finding the directions questionnaire. Uh The parties are expected along with the directions going on completion of the same to cooper with each other and agree and conclude in relation to what they should state but also a company in the directions questionnaire, we have each party's proposed directions. That's the main thrust. The element here is with the parties trying to greet the nature of the directions moving forward. What timescales are we looking at? If it's a personal injury claim, what medical evidence should the claimant be allowed? Should the defendant obtain their own medical evidence in relation to the claim. If so, from what fields of expertise, how long should the trial be listed for? Is it a three day trial or can it be done within two days to say element of cooper operation between the parties and trying to agree those directions if of course, that's not possible for, for whatever reason and that can happen. You know, you as a claimant wants, uh, an expert psychiatrist, the defendant says it's not proportionate in light of the nature of the psychiatric damage caused. Arguably. Um, that's a matter that would be left for the court. So the parties agree to disagree and then they'd follow their own directions uh in relation to what they uh specifically want the court to order at that hearing. Now, although, um, you don't need to complete any documents in relation to um, the sqe, I think it's worthwhile. A lot of the time having a look at certain, um, documents, certain forms reason being, I think because it helps you sort of understand the contents of, um, of those forms, which I think is really, really helpful. And if you had a question around maybe something to complete or investigation of your appliance as to what you should complete as part of a um performance part of a question in SQ A. Uh it's helpful that you know what the form looks like. So there's various of these films I've actually talked about to form and I've said listen, let's go and have a look at the form and it's useful to do that. Let's see what information is required in relation to that form. And it's useful to do that. Now, in relation to the, um, the directions questionnaire, I'm just gonna share my screen again in relation to that. It's a fairly lengthy form. Um, but you, you get used to these things as well. The, the usual elements, name of court claim number, the ex its you expect who you represent in the um in the claim, there's a bit of a warning about expectation of settlement. Um And then we have here for legal representatives, I've explained to my client that they need to try to settle the claim, the options open and the sanctions involved if I refuse to try to settle. Uh here confirm you've given your client um that advice um given that the rules required to settle the claim before the hearing. Do you want to settle at this stage? So then you think, ok. Right. Where are we with the case? Uh Do we want to settle? Yes. Do you want a one month stay? So you can say, well, yes, I'd like a one month stay. Let's see what we can do prior to the need for directions being set down and going through the cost of that to see if we can actually conclude matters by way of an agreement. Alternatively. Um You can say yes, we want to try and settle, but we don't want to stay. Let's just proceed with directions. We'll sort out ad r between ourselves or alternatively, you can say, no, I don't want to try and settle. If you say no, you have to justify your reasons for that. Uh An obvious one is that maybe your case hasn't been finalized. You need further expert evidence, further medical evidence because uh the client's uh symptoms are ongoing or they uh continue to suffer past the prognosis period given by the original um expert in the case. So therefore, what you're saying is no, it's not appropriate to try and settle now because I need to finalize the evidence before I'm able to understand the value of the case and then be able to uh advise my client accordingly uh in relation to the court. Uh If you've got a high court case, a claim has been issued in the high court, should it stay there? Yes, it should in the division and so on. Um Well, no, I prefer the case to be heard in the following county court. We looked at that and the element of transfer between county and high court and also in an earlier film, we looked at when it's appropriate to um have the matter issued in the high court or in the county court and the ability to transfer between the uh the two courts. Um Is there any reason why your claim needs to be heard at a particular court or hearing center generally. Um, if you're acting for the claimant, you would normally say yes. And that would normally be because you want the case, um, heard in your local county court. The reason being, of course, because if you live in Birmingham, you want to go to Birmingham County Court to give evidence. Uh, if you live in Birmingham, you don't want to go to Cardiff County Court cos that's where your solicitors are based. So, therefore, yes, that is a reasonable. You want a specific court, um, to deal with the matter. And of course, then, uh, you state the reasons why you want that. In essence, it's convenience to the claimants and convenience to their witnesses, all of whom are probably likely to be uh, local to the, uh, the claimants as well or at least local to the area. Assuming if it's a tort, the accidents occurred in that area, it may be, um, that the difference of opinion there, maybe the claimant was traveling, was seen relative in Cardiff when the accident occurred. There's a liability dispute and there's three independent witnesses all based in Cardiff in that situation. And then maybe the claimant would say no, I'd like it heard in Cardiff. I don't mind traveling down to Cardiff for the day. And also I've got relatives down there. Um, but also it's more convenient for the three independent witnesses who are based in that area rather than them having to come up to Birmingham County Court. The risk that they won't come up or there is that I'll have to pay in sum of money by way of the witness, someone wants to force them to attend and I'd have to pay travel expenses and their conduct money as well. Uh, in relation to the preaction protocols, you're expected to comply with them. That's what the form says. Have you done? So, uh hopefully the answer will be yes. And if the answer is no, I have not complied or any partially complied, explain. Um generally, you should hopefully not be ticking the no box, but there may be a reason for that. It may be because proceedings had to be issued very quickly because you were instructed shortly before limitation. So there wasn't an opportunity to fully comply with preaction protocol practice. Arguably that could be for either party in relation to that maybe other defendants and the claimant issued very very shortly after beginning the preemption protocol. Um process applications. Um Have you made any applications? Yes. Is so what the application is? And the date of the hearing or alternatively? No. Um just for the court to be aware generally, what that looks at is if there has been an application made, as we know, you can make an application say for argument's sake and payments, you'll see it later on the earliest time you can make. That is the day the acknowledgment of service is due. So it's 14 days following the deemed dates of service. Um You may have a listing for that already. Well, the court may want to do if it, this is a multi track value case and we've got a listing for the interim application here. List the CC MC for the same time, manage the case actively that way. So if you're gonna go and you've got a hearing for an interim payments, why not just actually have the CC MC listed at the same time as well. Everyone's there deal with the application deal with the directions for the future management of the case as well allocation to track. So the case should be allocated to fast track, intermediate track or multi track. You choose one, we look at allocation in a, a little bit later uh in this film. Uh Is this agreed? Yes. Um No, uh give brief reasons for the proposed track. So if there's a disagreement over the nature of where the tr uh the case should be allocated generally because of value, you set out your reasonings there in relation to your proposal, fastenings media track, we have complexity bands. Um Basically there, you'll see that the rules but you don't need to know them in detail. What you do need to know of course is that um each of the complexity bands means you get a higher amount of fixed recoverable fees. So basically the higher the band, the more money you're going to get. Um And then you explain um the nature of the band that you would like to uh have the case allocated to. If the court does allocate it to the faster intermediate track, the banding will also be specified as well. So you save the arguments about costs at a later stage. And again, is the band agreed and brief reasons for the proposed band. Generally, the more complex the matter, the higher the band um is in relation to that allocation. So you can justify more costs. So disclosure of electronic documents, multi track cases only have you reached agreement using the EDQ uh about the scope and extent and disclose of disclosure of electrode documents. We've seen this with regards to disclosure, I will see uh in relation to disclosure on what this means, what these forms mean. Uh So that in a later film um generally, have you agreed it? If not? No. Uh If um so if so, yes, if not, then is an agreement likely, yes or no in relation to that EDQ completion, that's about the um the extent of your disclosure of electronically held documents. But again, we'll see the meaning of that in a uh a later film. Uh If there's no agreement and I agree and no be is likely what are the issues about disclosure of electronic documents the court needs to address and you state the free text box there to explain that disclosure of non electronic documents. What directions are proposed for disclosure? Generally, you're looking at what's called standard disclosure by way of list, that's a general process for a lot of these litigated cases. Again, I accept that may not mean much to you at the moment. Um, you'll see in a later filming, disclosure will talk about what standard uh, disclosures has the usual um, order that comes out of, um, a disclosure, uh, order um for most track cases except personal injury cases because we don't have this with personal injury. We've got a disclosure report and a separate form. N 263, have you filed um and serve that, that looks at the uh cost elements of um disclosure itself, it says accept personal injury because what we're looking at is cases where there is an expectation of a greater amount of documentary evidence. So commercial disputes, contractual, um claims with a breach of contract maybe uh involve a lot of quantity of documentary evidence. That's when you have a separate disclosure report utilizing in cases like that. Have you agreed a proposal in relation to disclosure that meets the overriding objective and the reasoning there? Ok. Experts. Uh Do you use expert evidence at the trial or hearing? Yes or no. Um Have you provided copies to your opponents, yes or no or non yet obtained. Do you consider the case suitable for a single joint expert in any field? A single joint expert as you'll see in a later film about experts. Evidence is where you have one expert who gives one report and that's disclosed to both parties at the same time because both parties in instruct that expert at the same time. A yes or no, whether you think it's appropriate. Um Please list these single joint experts you propose to use in any other experts you wish to rely upon. It's got a free text box there. And the idea here is you list your expert's name, you list their field of expertise, orthopedic surgeon, action, reconstruction psychiatry. Um And then in the box next to it, a justification for that expert as well as an estimate of costs. So the justification generally say for you going for psychiatry is the claimant suffered psychiatric injuries. You go for accident, restructure uh reconstruction. Um There is a dispute on liability and the value of the claim necessitates expert evidence in this field. Maybe because there's a lack of independent witnesses or whatever it may be. It's important as well to put an estimate of costs in the directions questionnaire here. That's irrespective of the fact that you're also going to have a budgeting exercise which will deal with the cost elements. You're still expected to put an estimate um within the directions questionnaire itself, witnesses which witnesses are fact 10 to court at the trial. Uh And then we've got here, the name and the witness and what fact they're uh a witness to, um, that could be uh witnessed to the accident itself. So they're uh an independent witness on liability. It could be that they are the claimant's partner and they're giving uh witness evidence in relation to the care they provided that balance of following a road traffic accident to follow an employer's liability, personal injury claim and use of the Welsh language. Um We'll look at that this separately as one part is legally represented. Um uh The, the idea here in relation to the use of Wel Welsh language is the fact that if you wish to use Welsh and you wish your claim to be conducted through the medium of Welsh, that is an option that you have. Uh, and that you can progress with your claim through the medium of Welsh that's supported by the government. And that's certainly so I think it's actually is often encouraged and you have as well. A lot of judiciary who are Welsh speakers and that's generally their primary role is to hear cases through the medium of Welsh, always something you have to bear in mind. But we'll see in a uh another film in relation to how that works with regards to consideration the use of the Welsh language, um, trial or final hearing. So how long do you estimate the trial or final hearing will take in days and hours there, um, or more than three days, if it's gonna be more than three days any days in the next 12 months when you an expert, et cetera, et cetera, someone who's useful to your case is not able to attend trial to uh, to give evidence. Um Yes, you've taken your details and note generally this is sort of irrelevant for the multi trp value cases because you have um, a trial window set down and then uh a trial date form part of that. We see this in a later film as well. So there's a uh an opportunity at a later stage to set out within a uh more limited um period of time. If it's a multi track case, usually about three months are the dates when you cannot make or attend a trial. This is useful really for fast track cases or intermediate track cases. Because following the directions questionnaire, there may not be a hearing for a fast track or intermediate uh track case. They may simply um set the matter down for um trial. And so this is your opportunity to say, well, look, I can't make any points at any time in June because I'm on holiday and it avoids that date being used for the, the trial date. And if your trial's set down and you haven't put the details in here or if you haven't, they not been considered, you'd have to make an application to vacate the trial and that comes at a cost obviously, um costs themselves. What's important as we seen this, uh in an earlier film. Um Is the need to attach your uh present H or cost budget to the directions gra if your case is not in excess of 50,000 pounds, then you I confirm present H is attached if the case is in excess of 50,000 pounds, then of course, the cost budget of the present H needs to be filed at least 21 days before the CC MC. The cost and case management hearing. Do you intend to make any applications in the future? Yes or no. And what the nature of the application is for free text box here in the space below any other information you consider will help the judge manage the case. Anything you think is appropriate to provide information um to give to the judge vulnerability really, really essential. We see this all the time now we see it on a claim form as in consideration of vulnerability of a party. We see it on a directions questionnaire. We see it later on in a listing questionnaire. Uh I've, we looked at this as uh in an earlier film, but always be aware. Is there anything about a witness or the claimants which makes them to be vulnerable that needs to be borne in mind when the court is setting down directions, anything they need to do to make adjustments in relation to the vulnerability of that client or that witness? Um And then of course, it states that you need to attach your draft directions and then your bits and pieces. Here you sign and complete in relation to the um the document, the usual uh run of the little bits and pieces. That's the directions question. I thought it was helpful to go through and have a look at each of those boxes. Just so if you did get a question um and around what you need to uh maybe ask a client ahead of finding the directions question. It's part of a multiple choice question by having a look at the f the form like as a visual uh revision aid that may help, you know. Right. So the next step, we've um got the directions, questionnaires, we filed the directions, questionnaires, the judge considers the party's directions, directions, questionnaires and the draft directions also budgets in cases worth less than 50 K. If ast track cases are caught, we usually issue directions as I said before and that includes a trial date as well. In most fast track cases, we, you don't need the C MC C uh case management conference. Uh Also when a case is allocated to the intermediate track, the court must also assign the complexity band. We saw that and the banding is 1 to 4. Uh And that of course reflects the amount which is allowed for the claimants fixed costs. In case we done, we need budgeting such multi TRP value cases, uh CC MC cost and case management conference will also be listed. Um, afters questionnaires have been filed in some cases. It is fairly rare. We may have AC MC listed first prior to AC C MC. You may get that in a case, maybe where one party claimant is saying I'd like a split trial on liability. So effectively, I'd like liability to dealt with first as part of directions. And if we're successful at the trial of that, then later on, we'll have further directions for the quantum elements, defendant may have argued against that and said no, let's just have all the directions and we'll have a trial on both. Thank you very much for it's more cost effective in that situation because of the nature of whether it's a split trial or a trial involving uh liability and quantum, what the court may want to do since we, we, how do we budget that? Ok. You'd have to make a decision first in relation to whether it's a split trial or whether it's a tri uh trial on both issues before you can work out. What the total of your budget's gonna be. Is it just limited to liability only costs or is it liability in quantum? The court might list it for AC CC MC sort out the issue. We'll make an order. Yes, it is a split liability trial. Therefore, your budget is going to be limited to liability only and we'll deal with that at the next CC MC going forward if they don't. Of course, and you have an argument between the parties. What you need to do is produce two budgets. Use a budget assuming you get a split trial and to produce a budget which uh is liability and quantum, which means if you don't, if you're not successful, you don't just up to the CM uh CC MC. And it turns out the court says no, we're gonna go for both liability and quantum and you're waiving a budget to limit to liability because how is your budget going to be assessed? You're gonna have a real problem in relation to that if it doesn't consider the elements of quantum as well? Uh An initial case management order following this is called a directions order and that sets down all the steps the parties need to comply with and sets out a date by which they need to do. So. General rules and fasten intermediate track cases is for the trial to be no longer than 30 weeks from the date of the directions order. The idea is to try and get these cases of a limited value, fast intermediate track value pushed through as quickly as possible. I said earlier, looking at allocation CPR is divided litigation into four different tracks, small claims track uh which you don't need to know about specifically um uh for the SQ assessment criteria. But you do need to know because the i the argument and the idea behind allocation is, is it small claims trap? Nope, let's move it up. Is it fast tracked? Nope. Ok. Is it intermediate trapped? Nope. Let's move on up. You see which one it isn't applicable to be allocated to before you work out? Which one it is in essence. So you've got small claims track, fast track, intermediate track and the multi track and the CPR sets out the parameters for each of those tracks. The parameters are based upon value, the value of the claim, the important aspects in relation to that, this is a different exercise than the one you've seen in relation to issuing court proceedings. So when you're issuing court proceedings, you look at the statements of value and consider what the value of that case is. So you can then issue proceedings and pay the requisite court fee based upon um that uh value when it comes to allocation, you look again at the value of the claim, but there's an additional element there which you disregard. So again, like most things, when it comes to considering the value of the claim, you don't worry about interest. You don't see elements of interest from thinking about allocation costs are irrelevant. They're kept outside of it. So you don't add your damages plus. So like your costs and work out how much that is before you think about the track allocation. What's different here is any sum which has been agreed? Ok. So that means if there is part of the claim which um has been pleaded and has been agreed by your opponents. Then it isn't incorporated as part of the value of track allocation. So the defendants can box clever in relation to this by the situation, you have a case which is pleaded at say 110,000 pounds for argument's sake. Um That is of multi track value. Now, that's, that's we know that because it's in excess of 100,000 pounds, we'll see the, the parameters in a moment but sh but follow me on, on that. So it's 100 and 10,000 pounds of that. And so there's no liability to, it's a quantum only matter. So liability is admitted, we just arguing about the sum of compensation due to the claimant following a personal injury. And if say, um 20,000 pounds of that is for loss of earnings. If the defendant looks at the evidence in relation to that and in their defense or their, and their counter schedule to the, the claimant's uh schedule of loss and sees the evidence in support of the loss of earnings thinks, well, that's ok. The medical evidence supports a period of time off work. I have uh documentary evidence to support the sum of the claimants received by where their wages, evidence and support they weren't working and not capable of working. Therefore, what's the argument? Therefore, we agree, we agree that 20,000 pounds loss of earnings, that sum of money is admitted. And that's part of the defense. If you remember, um, from other films, the fact that when you're coming to enter in a defense, you admit, deny or you neither admit nor deny. So if the defendant admits it, it doesn't need to be proven any further. So that's it accepted. In this example, I gave you 100 and 10,000 pounds for the claims. It's multi trp value. Defendant agrees 20,000 pounds of that claim. The value now falls to 90,000 pounds because any great agreed sum is not considered when looking at track allocation by doing that. What the defendant has also done is taking it out of the multi track and put it squarely into the intermediate track because now that sum is below 100,000 pounds, not in excess of 100,000 pounds. And it's an intermediate track case. That's what the defendant's done by doing that is taken a case and made it intermediate track, which means budgeting is out the window, but it also means the case will then be subject to fixed costs. So it's a sort of quite a clever way of actually allocating on a tactical basis and limiting down um the future of that claim. Also, you disregard any contributing negligence. So for argument's sake, if your case is worth �200,000 but you weren't wearing your seatbelt, you know, there's gonna be a reduction in relation to that irrelevant. You just look at the gross value, total value without any reduction for contributing negligence. Um You disregard uh the value of any counter claim or set off, say for counter claims that are claims in their own right. What that means is for, I would say if you have issued your claim, you've got a bit of whiplash, it's a fast track value case. Um And maybe you've uh you think the values around about 20,000 pounds. So it follows the fast track. You then have a counter claim by the uh defendant because the defendant has also been injured in the accident, but the defendant lost a leg. A so it's a amputation claim and therefore have a much more uh higher value claim than what the claimant is. In essence, that counter claim is made for what is clearly a multi track value claim claim. When you disregard the value of any counter claim immediately with regards to any sort of element of, you don't total them both together and then work out. That's what the total of the case is. So for argument's sake, if the claimant's claim was 20,000 pounds and the defendant made a counterclaim for 20,000 pounds, you can go 2020 equals 40. That media track. It doesn't work that way. What you look at is the value of the most um sort of the uh the most important elements and valuable elements of those claims in its own right. So though the claimant's claim is fast track value at �20,000 just because they're the claimant that doesn't dictate where that claim will be allocated to. If the defendant has made a counter claim of a significant value of that, he sort of multi track value, the case will be allocated to the multi track. It makes no sense that you've got a small value case and uh an amputation case, but you have to treat this amputation case like it's a small value case, rush it through limit down the trial time. Cos fast track is only a one day trial just because they uh unfortunately didn't issue first. They had to issue a counter claim because the claimant got in there first. It doesn't work that way. Ok? Just bear that in that in mind when it comes to allocation also the recruitment of benefits. So as you know, benefits are offset well against various heads of claim. Um You don't look at say the loss of earnings, it expires a total of 20,000 pounds, but there's uh benefits, crew benefits of 15,000 pounds. We'll have to deduct that from the loss of earnings claims. His loss of earnings is only now 5000 pounds and that's when he's adding to the rest to look at the value for allocation purposes. It doesn't work that way. There's a loss of earnings of 20,000 pounds. That's the sum which he's considered for the purposes of allocation. Any uh reduction for the recruitment of benefits is irrelevant. So what is a small claim then? So if you work at the bottom and work our way up in relation to this um cases with an upper limit of 10,000 pounds, if no personal injury. So what we're looking at when it comes to allocation, we're always looking at more than if you think about that in excess of more than so. If it's 10,000 pounds sport claim, if it's 10,000 pounds and a penny, it's the next track up, it'll be a fast track and yeah, that's how it works. So up limit of 10,000 pounds if no personal injury or if there's personal injury and the value of the claim is not more than 10,000 pounds and the value of the claim for injuries is as follows, this way can be a little bit lessy because you have three different valuations in relation to a claim for the personal injury. So it's a general damages claim itself. You've got 1000 you got 1500 you got 5000. Ok? So that's how it, how it works. First thing is when we're looking at these values, if you've got a claim which isn't an RT A, a road traffic accident. So it's an employer's liability claim or public liability claim, then the upper limit is 1500 pounds. So that 1500 pounds for your injury and that is for non RT A claims said public liability and your, um, your employer's liability claims if you have an RT A. Um, the rules vary. The initial starting point is the value of the personal injury, um, is not more than 5000 pounds. In essence, it's 5000 pounds for the personal injury. And the total value of the case is, uh, not more than 10,000 pounds. It's a small claim that 5000 pounds applies to road traffic accidents only where they occur after the 31st of May 2021. Ok? Or uh and it doesn't apply to those claimants who are called vulnerable road users. Vulnerable road users are those who are Children protected parties on a motorbike on a push bike on a horse, pedestrians. Um those in um which were the motor scooters and things like that, they are considered vulnerable road users, ok? So that 5000 pounds, not more than 5000 pounds. Road traffic accidents only applies post that 31st of May 2021 and only applies to those who are not vulnerable road users, road users if we have an accident prior to the 31st of May 2021. And a lot of those are now dying a death because limitation reasons. Um not uh so it's prior to that date, the US May 2021. Um and also they are all they are a vulnerable road user. So child uh projected party uh on a motorbike push bike, horse, pedestrian motor scooter. Um then the limit is 1000 pounds, not more than 1000 pounds, the total sum is still at 10,000 pounds, not more than 10,000 pounds limit or the p injury element for general damages differs depending on those circumstances. So looking at example, in relation to that, if we have someone who's driving a car, uh and it's post may 2021 normal incidents and their claim uh for general damages is 4000 pounds and their total claim is not more than 9000 pounds. That's a small claims trap matter, ok? If alternatively they are driving their car post may 2021 thirties to May 2021. Um and their claim for uh person injury is 6000 pounds. Um then it wouldn't be a small claims track matter because it's more than that 5000 pounds limit again if we had and then look at the other elements, as I said, 1500 pounds for employers liability or per liability case and it's 1000 pounds. If we're looking at an accident prior to the 31st of May 2021 or of course, we're looking at a vulnerable road user. So if it's a pedestrian um crossing the road gets run over and their claim for injury is 1500 pounds, but the total value of their claim is 9000 pounds that's fast track. Although the total value of the claim doesn't exceed 10,000 pounds, the value for the injury does exceed 1000 pounds. So that makes it the next track up. So fast track. Um, cases there are ones that aren't suitable for the small claims track. Uh It's the normal cra uh track for sums not in excess of 25 pounds and pounds. So what we're looking at there when we said small claims not in excess of 10,000 pounds. If it's 10,000 pounds, it's a small claim, 10,000 pounds in a penny. Then it's um fast track with fast track. If it's 25,000 pounds, it's a, a fast track case 25,000 pounds and a penny. And it knocks into the intermediate track. Also, fast track is the normal track only if the court considers a trial is likely to last long, no longer than one day. If the court thinks the trial will be longer than one day. And there's a justification for that, it won't be on the fast track. So irrespective of the value it's due to an intermediate track or longer than multi track. Um Also with fast track, oral expert evidence is limited to one expert per, per party in only one expert field. So both your orthopedic surgeons are allowed to go to the trial, but not your orthopedic surgeons and your psychiatrist. If you've got two experts and overall, you're only allowed expert evidence in two expert fields. So if you want an orthopedic surgeon and you want a psychiatrist and for argument's sake, you want an accident reconstruction expert, that's not gonna happen. Uh If it's a case which is allocated to the fast track, the intermediate track, uh which is I say the new one which came by, I say new one came into force. October 2023. 1st of October 2023 it's the normal track where the claim is suitable for neither the small claims track nor the fast track. The claim includes a claim for monetary relief. The value of which is not more than 100,000 pounds. So again, same rules apply 100,000 pounds. It's intermediate track 100,000 pounds and a penny. It's the multi track. The court also considers if the case is managed pro uh proportionately, the trial will last not longer than three days. Oral expert evidence at trial is likely to be limited to two experts per party. So it's all evidence now not from one. I can fast track two from intermediate track. Uh The claim may be just in proportionately managed under the intermediate track procedure. So I could speed your way of moving the matter through and also reductions or limitations in relation to the costs which can be recovered by way of the complexity bounding. Uh There are no additional factors should make the claim inappropriately means immediate track. And also the claim is brought by either one claimant against one or two defendants or two claimants against one defendant. You've got two claimants, two defendants. That's not your intermediate track. Ok. And then multi track basically everything else. Uh in essence, so a case in excess of 100,000 pounds is your multi track um value case. Don't forget as well. Just as a little reminder, um multi track cases can be in the county court or high court. Um if the sum is 50,000 pounds or more for personal injury, other matters relevant to allocation. So the financial value of a case is not the only criterion when applied in considering allocation, additional criteria. Uh you think of that. So when we're looking at elements of case value, that's your core starting point, the case is worth 50,000 pounds. Therefore, it should be allocated to the intermediate track. Um It works differently in a sense that if you have that initial starting point, that's the value of the case. Therefore, that's the track. It should be on the additional criteria ones where you're looking at moving a track, uh a case away from one track into a higher track because of the nature of some of the elements here. So um nature of the remedy sort, complexity of facts law and evidence, number of parties, the likely parties, the value of any counter claim or part 20 claim in its complexity, the need or the amount of oral evidence, importance of the claim to the parties, the views of the parties of the A is bound by those and the circumstances of the parties. In essence, is there anything else which is different about your case, which would justify it moving from one track into a higher track? That's the matters relevant to allocation other matters. So what you're looking at there, it's always things where you're bumping it up to the track above uh above the track where it should be based upon value alone. Let's try a question in this area. A question which actually also tests and elements of maths as well, which you will be expected to do. Uh You see it a lot in solicitor's accounts for Frk two, but also you will be expected to do some basic maths calculations in the exam as well. So you add on behalf of the claimants in a person, you claim funding a road traffic accident liability is disputed. You're about to consider the appropriate track allocation and note the following claim for personal injury is circa 10,000 pounds. The claim for special damages totals 90,000 pounds and that includes a lot of earnings claim. The defendant has a counter claim worth circuit 25,000 pounds interest on past losses totals 5000 pounds. The claimant was not wearing a seatbelt. The claimant has a claim for loss of earnings totaling 10,000 pounds which you know, cos that's incorporated as part of the 90,000 pounds of specials. But also the claimant received benefits for ES A uh ES AC app support allowance contribution totalling 7500 pounds. Which of the following best reflects the position of allocation based upon case value alone. A the claim will be allocated to the fast track as the claim for damage duty is not in excess of 100,000 pounds interest recovery benefits contributing negligence. And the defendant's can claim are not taken into account when considering allocation based upon case value, B the claim will be allocated to the multi track as the claim for guarantees is valued at �100,000 or more interest recovery benefits, contributing negligence and the defendant's counter claim are not taken into account. We consider an allocation based upon case value C the claim will be allocated to the M trackers. They claim for damages in excess of 100,000 pounds even though recover all benefits contribute negligence and the defendant's counts claim are not taken into account. When considering allocation based upon case value B, the claim will be allocated to the multi track as the claim for damages is in excess of 100,000 pounds. Even though interest recovery benefits and contributing negligence are not taken into account and consider an allocation based upon case value. Finally catch my breath. Uh E the claim will be allocated to the intermediate track as the claim for damages is not in excess of 100 pounds and pounds interest recovery benefits, contributing negligence. And the defendant's counseling are not taken into account and consume an allocation based upon case value. Right? A bit wordy. So what do you think? The answer is on that? One answer is e the claim will be allocated to the intermediate track as a claim for damages is not in excess of 100,000 pounds interest recovery benefits contributing negligence and the defendant's claim to claim are not taken into account and consider an allocation based upon case value. So look quickly back at the maths involved here person, you claim 10,000 pounds special damages claim 90,000 pounds. Don't forget. That includes the loss of earnings claim, which is mentioned mentioned later on being 10,000 pounds, the 10,000 pounds plus 90,000 pounds 100,000 pounds. So it has a counter claim worth �25,000. That's irrelevant. Um As we look at the county claim in itself is whether it justifies a different track, which it doesn't sort of a lower value. So you dismiss that and don't take that into account when assessing the claim value interest 5000 pounds. Again, you take, don't take that into account. Claim was not wearing a seatbelt. Elements of contributing evidence are irrelevant when taking into account the value of the case for the purpose of uh allocation. We know the client's got loss of earnings claim totaling 10,000 pounds. That's fine claim received benefits for 7500 pounds off ES ac which is offset them as against the loss of earnings claims that reduces the loss of earnings claim down to 2500 pounds. But for the purposes of allocation, you don't offset the benefits. You look at the fullsome due of that 10,000 pounds. So that means in totality, the case is worth 10 plus a nine, 100,000 pounds and don't forget the more important elements in relation to allocation in excess of. Ok. So if the case is not in excess of 100,000 pounds, it's an intermediate track case. A case has to be in excess of 100,000 pounds to go to the multi track. So for 100,000 pounds, intermediate track, 100,000 pounds and a penny goes up down to the uh the multi track. Uh the others are, are wrong in relation to conclusion. Um A says fast track and BC and DC multi track um for the wrong reasons. I got the explanation there. So a um uh the case of value needs not to be in excess of to be not in excess of 25,000 pounds to be a fast track allocation. That's why we know that's wrong to b the value must be in excess of 100 K and not 100 K or more that says 100 K or more. That's wrong. It's not in excess of, um, c, um, has included interest when looking at case value. That's incorrect because you don't include interest and these increases that included the defendant's county claim when looking at case value is what those matters aren't considered when considering case value. Thank you very much.

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Part 14 - Webinar

00:41:33

Hello, my name is Darren Hackley Green and this is film 14 in the dispute resolution series for SQE. Uh This film is in relation to the subject of disclosure. So if I have a look at the SQ Eight assessment criterion, uh what or I expect it to be to understand their in this for the exam. Um There it is listed there in relation to things like specific disclosure, preemption and non party disclosure, their applications. And I'll deal with those separately in a different film in relation to um applications themselves. So all the other matters I'll deal with uh now in this film. So what is disclosure, this is during the course of litigation and actually during the pre action protocol uh as well as an obligation and duty to disclose and permit inspection of certain documents and disclosure is usually the first order given by the court that you need to comply with following the CC MC. Or alternatively, the court has simply listed directions we say fast track or intermediate track matter. That's the first uh direction normally have to comply with. It could be a very expensive part of uh the litigation process and to search copy, uh consider all the relevant documentation in the uh in the action. And because the court is aware of the extensive search that can be involved, often they utilize their case management powers in order to limit then the nature of the disclosure search or the disclosure that is to be given in any given case. And we'll see that when we look at specific forms like your N 263 and 264 in a moment as well, disclosure disclosure obviously applies to um all parties to the act. Be aware of distinction between disclosure and inspections. The idea of disclosure is you um lay on the table uh obviously metaphorically, um all of the documents that you have and that includes documents that you're saying to the side they don't get to see because they are privileged. Um Key example of, I think like privilege, we deal with privilege a little bit later, but you know, uh communications with your barrier, you've obtained your barrister's opinion uh on the merits of the claim, obviously, that's not disclosing to your opponents uh that's protected by privilege. However, you tell your opponent, you have it by way of the disclosure that you give nature of inspection is different. Inspection is the right to see those documents. So disclosure is literally saying here they are inspection of the RDU, get to see and look at the documents in question. So those are quite different. Uh elements just be aware of the distinction. OK. So anything about disclosure limiting down what your opponent can and cannot see that's not the point of disclosure that's supported inspection. So definition of documents in relation to disclosure is anything uh in which information of any description is recorded. So that means disclosure again is very wide ranging, not limited to paper, not limited to originals, it can extend to uh anything upon which information of any kind is stored. So electronic disclosure, emails, hard drive, et cetera, et cetera and massive elements in relation to disclosure. Also, disclosure can actually relate to objects, things uh as well. So various documents and forms in the course of um disclosure, we're gonna have a look at three different forms. And the last form that we're going to look at disclosure list or list of documents in 265 is probably I feel the most important one in relation to your examined dispute resolution, but the other ones are also relevant in relation to the steps you take. So first one is your n 263. So that's uh a form which is utilized for a disclosure report utilized in a nonperson injury, uh multi track cases to a personal injury claim. You, you, you're likely not to have to complete this form. I've seen it once in uh my practice in one of my personal injury cases where the court ordered the disclosure uh reports, whether that was by accident or not. II I don't know. Um It's the only time I've ever seen it cos generally, they're not utilizing personal injury cases. Uh It's usually filed with the directions questionnaire and it requires the party to state what relevant documents exist or may exist. It also requires the party to provide details as to likely cost of giving relevant disclosure. I said earlier, the judge can um very easily case manage the claim in relation to the limitations on disclosure. Always having one eye, the elements of proportionality thinking about the overriding objective and elements like that. And this disclosure report is a good way of really highlighting the elements of disclosure. Don't forget with multi track cases, you also budgeted. So you're gonna have the elements of cost within your uh present age, what costs you think are involved in disclosure. However, the disclosure report just gives a bit more detail in relation to those um sort of elements uh parties are expected to discuss the report and if possibly agree the scope of disclosure obligations. That's always the case with anything in relation to directions and cooperating with your opponent, discuss and agree if possible the limit or otherwise of uh your disclosure obligations. In a case, the report contains a simple statement of truth. Uh what documents exist or may exist that, that may or are relevant to the issues of the case itself where they are and with whom they are and how many electronic documents are stored. Of course, they have to give the estimated cost of what's called giving standard disclosure in the case as well. We'll look at that um shortly by the way, when it comes to disclosure, understanding, standard disclosure is really essential, a really core element of disclosure. Um very important. And I really foresee if you're going to have a question around disclosure in sqe standard disclosure is probably a good area to be questioned upon and also looks at the direction and sort. So let's have a um a quick look then at a disclosure uh report uh itself, it's a very simple form. Uh compare this by the way to the EDQ, the electro look uh documents question here, which we're gonna see next, but this form um is fairly simplified. So the reason I show you these forms I've explained before is I think it's useful to have a look at them to try and understand the content and the expectations when completing the form. Although you won't need to draft a form, you won't need to do anything like that in your exam. It may be effectively, you're asked a question around the information to be put into that form. And I have a look at the uh the end form itself, you'll be able to sort of visualize the sort of elements you need to consider uh when looking at potentially multiple choice questions in that area. So we have the details of the part at the top as usual. Um Here we have the elements of the documents. So the number document description where it may be found if it's electronic, how it's stored. Um very uh general box here, please take the box below the broad range of costs involving, involving given standard disclosure uh including the cost of searching, et cetera, et cetera. Um And then you have other elements with regards to uh proposed directions or disclosure, disclosure directions required here. It could be the fact that you suggest a stage disclosure approach. Maybe you say that disclosure comes in various uh at various points. So rather than just going here's disclosure, it's crack on with that. Let's do an initial format of disclosure maybe by way if it's electronically keyword search and then from that think about, OK. Are there any further um disclosure directions needed because that has brought up the existence of any other possible um documents? And then at the bottom, a very simple statement of truth, I believe the facts stated in this disclosure report are true and the details there at the bottom in relation to the um the uh the parties. So that's a very um that's a simple form um to um complete um the form gets a lot more complex, you move through to the, the next form which we'll see that shortly. So I mentioned earlier that standard disclosure is really important. You need to be aware of it and understand it. So in fast track, intermediate case, uh intermediate track and multi track cases, certainly per of injury cases. And actually the majority of dispute resolution, the usual disclosure order, that's almost default position for the order you get is one of standard disclosure. So the definition of standard disclosure is set out in the rules. It means a party is required to disclose documents upon which they rely documents that affect their case adversely, documents that affect the other parties case adversely documents that support the other party's case bit similar of course to documents that affect your case adversely documents that support the other party case. But there is a fine line distinction and fifthly a document specified by a practice direction. So the important thing there in relation to standard disclosure is you can't just disclose things that are helpful and so you have to disclose everything. So even if it affects your case adversely, if it supports your opponent's case, you have to provide those documents. And that's the definition of standard disclosure, I would um for purposes of sqe I think I'd memorize those um elements. So the first four elements, the document specified by our practice direction is um unusual in all honesty. The first four I think are important in understanding where your disclosure obligations may come in. It could be you get a question around the fact that your clients found a document that's really unhelpful. You have an order for standard disclosure. And the question is what you do with that document. Um And of course, the answer is disclose it, but there's no option in relation to that unless of course you can claim privilege. And we'll look at what privilege is in a bit in relation to control. Control extends to documents. Uh Obviously within your control, uh control extends to documents which a party has p physical possession of. You've got them in your hand or at home or somewhere else has a right to possession or to take or to the inspection of those or to take copies of those um has, but no longer had, but no longer has um has a right to those could be documents which rest with your solicitors because you sent them to your solicitors just because you've sent them on doesn't mean to say you get to avoid having to disclose those. They are still within your control. Um If you have personal, your case and you will suffer the loss of earnings and you're self employed and you've got your documents for that with your accountant, so they can do your um tax returns. Um Then those are within your control. You can go to your account and say, can I have them back, please? Um Obligation is Cisco is not any documents you have, but also those you can obtain those you're able to obtain from uh the parties. As I've said, the obvious ones encounters insurers, your own insurance is another one as well. That could be documents in relation to the repairs or inspection of a vehicle following a road traffic accident. The obligation as well to each party to make a reasonable and proportionate search for documents proportionality. Apart from um privilege proportionality is the other way to avoid inspection of uh a document. So privilege, you look at separately abortion. What you do is you disclose, say the extent of the disclosure and say effectively that you're not disclosing those and do sorry, no air allow inspection of those documents because to do so would be disproportionate to the issues in the case. Um You need to give guidance to your clients obviously as to the extent of the search they need to make because they need to make an honest and true disclosure statement or report in relation to their disclosure obligations. They need to have a clear understanding of the issues in the case in order to carry out an effective search. So if you've got a case where liability has been admitted, say in the defense, then the client need not worry about documents which are relevant to liability. The police report, maybe the the inspection of a vehicle which I talked about earlier or the repair documents for a vehicle because those elements are in relation to liability. So you can limit the search down that way when the court declares that they have conducted a reasonable search for documents. They are saying they understand the duty to disclose and that to the best of their knowledge and belief. They've discharged that duty in multi track cases where an electronic disclosure is undertaken. Then we've got the EDQ the electronic documents questionnaire. You don't tend to see it again. In personal injury cases, it is more around the commercial elements, the contractual disputes and so on. Uh We need to complete this form N 264 and parties can agree it or they can either actually serve and file it uh on this form. N 264, The court may even order the form to be completed. He turned in his seat to the same cases where the extent of electronic disclosure is likely to be large and that can be where it involves maybe an issue around uh it itself. Uh so which is quite core to the uh elements of the breach of the contract between the parties. I say not commonly seen in personal view cases. Uh Purpose of the EDQ is to enable the parties to investigate categorize and agree the nature of electronically held documents that the parties must potentially disclose. Uh also expected to agree the extent of electronic searches. Uh If they can't do so, the court will obviously make a decision for them following representations from the parties at any CCNC or CNC. The agreement in relation to the limitation of E disclosure is usually around keyword searches. So for example, if you're in a search databases of a company in relation to anything rather than the disclosure, you could do it by way of keyword and that keyword could be limited to the name of the developing company or claimant company could be related to some specific issue about a package which has been sold to may not fit for purpose and it was given a specific name but anything uh of that uh ilk extent of e disclosure can be so great. You have to take very careful uh approach to that um to make sure that it's still proportionate to the issues in the case. Let's have a look. Then at the EDQ, I won't go through it in too um greater detail because being quite frank with you, it is a very um large uh bucks right? There we go answer any documents questionnaire. So lots of parts here that you need to complete. Uh what date? Uh So date range do you consider your searches for electronic uh documents should cover the date range for custodians, creators of electronic documents get through here. And then we have elements of communication with date ranges, email, et cetera, et cetera. Um A apart from emails are the form of electronic documents and date ranges. We're going through databases, methods of search to the key word search. I mentioned earlier information there that that's a keyword search, what that may be there are other types of automated searches. You can see the form goes on and on and on about potential problems. Um Preservation. Do you have a document retention policy? See looks at documents maybe that you have that some that are a lot longer accessible and a real explanation behind uh why that is. Um anyway, the form goes on and on. Uh and on. I don't need to go through it in a great deal of detail. It's got stem to truth on the bottom as well, which is important. Um I think you need to be aware uh of the, the content of that form, just have a look at it in relation to revision. It's much um longer than a disclosure report. Um But I think the good thing about that EDQ by looking at the form, you get a sort of a sense of actually the sort of expectations you have in relation to e disclosure. And you may have a question, multiple choice question which goes around advising your clients about the expectations in relation to e disclosure. What you can do potentially to look to limit that search if your client has concerns about the cost and the extent of e disclosure. Look at the EDQ can help you in relation to identify how to go about that um final form. Uh I need to have a look at is the N 265. The form has two names um interchangeably disclosure list or a list of documents. So just be aware of the two, they're used interchangeably. Um I think the official word is a list of documents but either way disclosure list is absolutely fine. It's the same, same documents. It's generally um the document you need to complete in an it has track, intermediate, track and multi track um case. But in personal due cases, always, it tends to follow on from a standard disclosure order. You complete um at the N 265 and you um serve and file those exchanging your opponents as a, a full disclosure declaration on the N 265. Just be aware, there's no statement of truth. OK. So there's a simple statement of truth on your disclosure report on your EDQ with your N 265 disclosure uh list. There's a disclosure declaration, there's no statement of truth. So it's not a statement of case. Um The full statement is that the party signing is carried out the search properly and with an understanding of their obligations, your statement is defined as a statement made by the party disclosing the documents. So we've seen before uh um in other films about the fact that with your statements of truth, a legal representative can sign that on behalf of the client say for witness statements, you can't sign that at all. Uh blood has to sign it or, or the witness. But uh the same as the truth because of plain claim form defense and you can sign it because you're authorized to do so on behalf uh as a legal representative on behalf of your clients, as long as you advise me, the, the uh risk of uh not having an honest belief in the truth of that. However, we are mindful, you can't be signing a list of documents for your clients. So that saying the truth, so same rules don't apply. Also, the disclosure statement is that of the party making disclosure and that will be your clients. Uh in the case, just be mindful of that. The party making disclosure is a company or firm in the party. So sign disclosure statement must also identify the maker of the statement uh and explain why you're certified the appropriate person to make the statement same as a private company, someone of uh appropriate authority in relation to that company director, company secretary manager, whatever it may be. So, uh the disclosure statement in the N 265 we will look at the form in a moment by the way, um details, the extent of the search has been made to locate documents that are required to be disclosed, certifies that the person signing the statement understands a duty to give disclosure certified the best their lives. That person is carried out that duty declare that they believe the extent of the search make is a reasonable one in all the circumstances. And if a particular search has not been carried out, specify that search and the reasons are not carried out or declare the limitations to any search. And the reason for such limitations. And the greatest one in relation to that of course is, well, it could be a proportionality which is the one you really do limit your searches down if there is that element. Uh but also of course, documents that aren't relevant to which is in the case. So disclosure, uh in relation to documents relevant to liability if liability has been admitted, right. Let's have a look at the N 265 and a little bit of detail. There, there we go. Um, again, usual bits of completing the, the core elements at the top there, disclosure statements are and claim defendants, um, state that I carried out a reasonable and proportionate search and that's your statement there, uh equals to disclose on the order made by the court. And that's the date of the order that was made for disclosure. So that's the CC MC date. Um Usually here we have, I do not search for documents. So that's the limitation in relation to your search. So predating to the date range. So it may be following uh, an accident at work or a rush of accidents is predating the date of the accident itself. Although I'll be cautious of that. Of course, because if you have any liability case, um then other relevant, um, accidents of a similar nature could be relevant and therefore limiting your search to those only um post the date of the absence in question may be a little bit uh disingenuous and we'll be cautious about that uh located elsewhere than obviously, the home tends to be of the individual or their offices, the offices of their solicitors as well in categories, other than the limitation of categories. They said before about that, you don't search for documents in relation to liability. If you had an admission of liability, you can limit down your disclosure there. And then for electric uh for electronic documents, generally, I wouldn't take that when you say I don't, didn't search for them unless there's a reason why you don't search for electronic documents in any given case. Usually all you want any of them, all um cases have potentially the relevance for, for electronic documents, certainly in this day and age. Um If you think about after road traffic accidents, if you've taken photos on your mobile phone of the damage to the vehicles and things like that, that's a document which is held electronically, it's important to think about that. Um I go there to search for electronic documents contained on or created by the following. Then this was search and the extent of the search. The A N have the limitation in relation to documents. Uh We gonna say electronic documents here as well. I did not search for the following again, documents created before documents contain on a created buying the party in question. And here when you can limit down where you don't search for documents. Um So it may be you do just search your handheld devices and mobile phones. Um But a reason maybe you haven't searched P CS or databases or servers or off site storage for whatever reasons. And the nature of the case again, documents uh contained on or created by it could be that you haven't looked at web based applications, documents files may be a good one because pay potentially as a result of the accent, you've kept a note of your losses via some sort of Excel spreadsheet and so on. Be mindful. Of course, with regards to your duty veteran disclosure relation to that. Um and then documents whether by reference to the following keyword concept. So again, keywords can come in there as well. I'm not permitted this uh inspection of documents within the category of class of documents as set out below. Um on the grounds that to do so be disproportionate. So we've seen before, the ones of relevance, you know, liabilities are said here and here we have the ability to say no, we're, we're not disclosing this because the elements will not making a search for these in lies of the elements of proportionality for whatever reason that may be, then it signed and then there's a date there. Importantly, on the uh next page, we have uh various boxes we uh free text to complete. Um So they are uh followers. I have control of the documents numbered and listed here. I do not object to you inspecting them or producing copies. So the important thing uh thing here when you're looking at completing your list of documents is you separate out the documents you say here they are. OK. And you can have them by way of inspection. That's no problem. And then you have other uh boxes where you complete. Well, here are some other documents but you're not having them. And the reason for that. So we'll look at that uh now, so the top box here is the documents you've got and you've got no issue over inspection. And that's of course, in relation to the definition of standard disclosure, that's the element there. So you complete it there, generally not enough room and there in, in the majority of cases, what I tend to do is say uh in here, see a touch schedule of disclosure and then there are separate um document, which is your schedule of disclosure. I list and itemizes those matters on a, on a uh support form I've drafted and next one, I have control of the documents numbered and listed here. But I object to you inspecting them. It's a chance to say, well, this is what they are. I said before disclosure, you say this is what we've got. Ok. That's the obligation you disclose everything full stock inspection is a different kettle of fish or inspection, but you allow the other party to see that. Ok. So you don't hide documents in a sense, you know, you, you've had a barrister's opinion on, um, on liability. You don't tell the other side. You've got, you don't re um, not tell the other side. You've got that, you tell them, but you just simply tell them, you're not having it because it's privileged in essence. Um There are the documents here where you say I've got them, but you're not having them and then the box below why there's objections. So that's it a general rule. There is privileged, it's protected by privilege and you can actually itemize the type of privilege if you so wish, it can vary the type of privilege. And we'll look at that in a moment. Um But you can specify that individually with regards to those documents or alternatively, I've had the documents numbered and list, but they, but they're no longer in my control. Don't forget, control does extend to your ability to get hold of those documents. So for argument's sake, if you um ha had an accident and you are employed, um and you um are claiming a loss of earnings, but for some reason, you've destroyed all of your wage slips. Um You can go to your employer to request, of course copies of your w maybe a copy of your contract of employment to show what your, um, annual pay is, um, you can't state here really. They're not in my control tough. Um, you know, I, I can't give you them, you gotta think about that extend to that surge and how reasonable that would be. Um, otherwise documents that make some reason you no longer have, um, for, uh, for whatever reason that may be, it could be the fact that you have destroyed them, uh, for whatever reason. Um It could be some other reason as to why they're no longer your controller and no longer as you're controlling, you can't get them. Um What does happen there. Uh It can be the fact that then your opponents, where is, where are they? Um And then they could then potentially seek a non-party disclosure order direct against that um, party depend on where uh those documents are kept. So that's a form I think it's useful to go through um that form and um understand the various elements you need to complete because that really just ties into standard disclosure. I think actually cements your knowledge in relation to disclosure procedure. What you have with regards to your directions is you have an order for a disclosure usually upon his entry 65 disclosure list, list of documents. So you uh exchange those, you then um look at the documents which are listed in that top box, a list of documents, the documents that um the your opponent says that's, those are the documents you you're entitled to inspect, have a look and see which ones you want. Um It could be the fact that um a lot of those you've already had as part of the action um protocol practice, that should be the case. There shouldn't really be any massive surprises. Um There could be additional documents you say. Ok. Yes, I have uh Xy and Z. Um Thank you very much press four inspection then comes usually within um seven days, the dates of um the disclosure listed. So documents being served that can be varied of course by court order. And you do see 14 days in court orders, generally the seven days is the default position. Um And then a time again, normally seven days unless it's varied by a court order for provision of those documents. So you look at the disclosure list, you go to your opponent and say I'd like Xy and Z. Thank you very much. And then within uh normally the 14 days, your opponent has to provide you with copies of those documents by way of inspection. Be aware as well. Importantly, again, a little small issue, this ongoing duty of disclosure, but it's important um because it could easily come up as a multiple choice question. So it is looking here about the fact that there's an ongoing duty of disclosure up until the point that the case settles the duty ends once the case um has ended and judgment has been given what happens if you comply the disclosure a request. But then uh uh an extra document comes up for argument's sake. You're making a claim for loss of earnings uh and have an ongoing uh loss of earnings claim. But then you get an extra wage slip or alternatively, you get sacked by your employer. So you get your P 45 because of the fact that you're no longer able to, to work documents that are relevant um to the issues of the case documents that still fall under the definition of standard disclosure, ongoing duty in relation to disclosure. You can't just simply ignore the fact because you disclose your obligation is being uh done and dusted that I see you can move on. You can't need to understand this is ongoing duty. If additional material comes to light, then the disclosure direction, when the disclosure direction has been complied with, then you must notify every other party immediately. And that's important. The word immediate that you can do it one of two ways, then you can either prepare a supplemental list of documents to show the additional documents have come to light or simply disclose the documents um that you've then obtained as part of your ongoing duty. And that can often come let say you see common in personal injury cases where during the course of the claim, you get updated medical records or the medical evidence suggests some form of treatment. So you get the popular treatment records. All this comes past um your um your order for standard disclosure. So therefore we just comply with the ongoing duty service part. Uh Once that is received, don't forget that Duty immediate. That's an important distinction there. Be aware as well about um slighting as your ring in regards to authenticity. Um OK, I it is, it's all unusual. It's not particularly common, but I raise it because we do like the less common sort of elements of, um, the CPR which can come up as we seen, um, the rules provide that a party should be deemed to admit the authenticity of the document disclosed to them. Unless they serve notice, they wish the document to be proved at trial. Any notice must be served by the latest state for serving witness statements or within seven days of disclosure of the document, whichever is the latest. Generally, um, you'd have witness statements, service being later because you disclose your obligations to come first, obviously. Um, but this, um, obviously covers the fact that maybe you've had witness evidence disclosed and, um served and then we've got the duty of ongoing disclosure and then this document has, um, has come up and been served. Then you've got that seven day period when we're looking at authenticity there, I suppose the sort of issues that may come around is things where maybe, um agreeing to the terms of a contract where you dispute the authenticity of the signature of one party to that contract, that it isn't your client's signature. And therefore you want the original to be produced and inspected by the court to confirm that you know, that is an original authentic uh authentic signature as an example where the authenticity can come into play. So the grounds for holding uh withholding inspection, so party on the document has been disclosed as a right to inspect that document, as I said, um other reasons for, for withholding grounds for inspection are listed there. So documents no longer in control. And then we I said before about the um the other party may then want to think about a non party order. And this of course, don't forget, reflecting on the fact that can that document become come into your control uh with reasonable steps and expectation on your, your plant in relation to that. Um whether you withhold inspection and grounds of privilege or see privilege in a moment because that's probably the most common important elements in relation to withholding uh inspection. Um All proportionality is the is the other key one with regards to withholding inspection, you just be aware of those because they're quite useful to think about um certain questions for, for Mc Qs about your ability to actually withhold inspection um challenging inspection. So if you disagree, so if your opponent has come to, you said, uh I'm not um disclosing this because this document is privileged, but you disagree in relation to that. What can you do because you can raise your concerns in writing with your opponents and warn them that unless um they disclose a document because you don't agree, it's privileged, then you're going to make an application, the application will be one called specific disclosure. We'll see that uh as part of applications uh in a separate film, um You could also give consideration to whether you raise requests for further information under part 18 in relation to uh that document that may be cheaper and easier, uh That may reveal that that document is privileged or may support any argument or application you have in relation to uh specific disclosure. Uh Don't forget as well. Proceedings for contempt of court can be brought against a party who makes or causes to be made a false disclosure statement that an honest belief in its truth. So even though the uh disclosure statement itself in your n 265 list of documents isn't a statement of truth. The fact is it still has the same ramifications in relation to that. So you need to make sure you advise your client about that as it types of privilege um are set out their legal advice, uh litigation privilege, privilege against self incrimination or without prejudice, privilege. Or we'll look at these now, um in turn, um privilege entitled as a party to withhold evidence from production was privilege has been established an absolute right to withhold inspection exists. Um The document still has to be disclosed as I said earlier. So privilege stops the uh your opponents inspecting that document, you still need to disclose it. Please understand that it's really, really important in relation to that sort of distinction between uh disclosure and inspection. Uh The right exists uh in relation to pris regardless of the relevance of the importance of the documentary in relation to the case. And the court can't raise any adverse inference into it with regards to you exercising your right to exercise privilege. So we've got two elements in relation to legal professional privilege. So we've got legal professional privilege and it expands off into two different elements there. Legal advice privilege and litigation privilege, both different types of legal um professional privilege, own purpose of legal, professional privilege. So therefore, uh is our party access to legal advice and the law is professional skill and judgment without the client com um compromising their position with their opponent, legal professional privilege, um blogs to the clients. So only the client can waive the same. There's the right to the client here. We'll look at waiver um shortly, accidental and intentional cos there's two sides to that point. Um But in relation to privilege, it is for the client themselves, who's the owner of the documents to decide whether they want to waive privilege, you cannot do it, say for the fact that you may do it accidentally which we'll look at later, but with regards to intention, it has to be your client who um, waive. Uh I see a legal advice privilege can apply whether or not litigation is pending or contemplated. But litigation privilege only applies when litigation um is pending or contemplated. That's the difference in distinction between the two. So in essence, legal professional privilege, litigation, one, if litigation isn't pending or contemplated, it will hopefully fall within legal advice privilege. That's the other element of privilege there. Um When it's within litigation privilege, it may also as well um fall into the category assuming of legal advice privilege as well. Obviously, burden of proof in a claim for litigation, privilege rests with the party asserting privilege. So if you're saying privilege, opponent says not, then the burden of proof uh in relation to that rest with you other types of privilege, provision against self incrimination. So a person is entitled to refuse to give evidence or disclose information. If the revelation would have the effect of increasing the likelihood of their being prosecuted for a criminal offense that commonly arises in road traffic accidents, be mindful of that. Um how that becomes relevant. So in the traction between a road traffic accident and uh a, a civil claim, um you see it commonly. So if you have an accident where someone has died as a result of the accident and the defendant has been prosecuted for uh causing death whilst driving that UK attention or care was driving or uh for a death by dangerous driving, they could be charged, there could be a lengthy trial process. If then you decide to litigate, then uh the disclosure obligations from that defendant. Whilst there's, whilst there's an ongoing criminal case are limited because of the nature of the risk of self incrimination. Ie they don't want to disclose something which could incriminate them cully uh for a criminal case in that situation, what you always do is where there's an ongoing criminal case and you have to litigate maybe because of limitation state the civil case until the conclusion of the criminal case. And once the criminal case has been um dealt with, then of course, you can um say effectively that no, the, the right to self incrimination is gone. You can't be tried twice arguably for the, for the same uh matter assuming you've been acquitted or convicted. Um Al also be aware of without prejudice negotiations. So any genuine attempt to settle proceedings be guarded as without prejudice. Um, parties may not make uh any reference to such offers or concessions that are made during the course of litigation. So because you go to trial and say, well, actually they offered 5050 a split of liability. They're trying to argue it's all my fault here. Don't do that without prejudice. Ok. So the judge isn't made aware of any of those sort of negotiations, anything of relevance in relation to the matter of cost at a later stage and be aware as well that documents, um, can be marked without prejudice and not be without prejudice. It could be argument over with that or it could be not marked without prejudice and actually be without prejudice. It's the content which is important. Be careful in practice. I see quite often, um, firms including without prejudice, information within doc, uh, uh, a same letter that has prejudice in uh information that isn't covered by, without prejudice, separate them out. Ok. So basically easier rather than having to redact something where you have part of a letter without prejudice and part not, it is always best. Of course, if it is without prejudice to mark it as such, be aware of waivers. I mentioned this earlier. So um privilege can be waived by the intention of the parties are right to claim privilege or by accident. Um That's unfortunate. So um only, of course, the party in SARS going for the defendant can waive privilege. So look at intention, it could be the fact that they intend to uh want to weigh previ cos it assists their casings their choice um intentions. A service of an expert's report weighs privilege in relation to that report obviously, but also any documents referred to in it. So if the experts has seen a document which you say is privilege, you waive privilege by the experts seeing it and then you disclosing that expert's report just be mindful of that. Um Yeah, so you can waive privilege if it assists your case. But of course, once you've waived privilege, you can't then claim privilege back. Once it's waived, it's waived full stop. Uh However, if a by accident, this is more common really, if a privileged document is inadvertently made available for inspection, then privilege will be lost. So where a party inadvertently allows a privileged document to be inspected, the party who's inspected the document may use it or its content only with the permission of the court. So, um that's important if you've been given accidentally uh a privileged document and the permission of the court to be able to use it. Um If a statement of case refers to a privileged document, then privilege may be lost. So if within maybe a particular claim or defense, you refer to a certain document again, like the issue with regards to the extra evidence which you referred to, you lose the elements of privilege. But it's a good question in this area. Then yet its on behalf of the defendant in a road traffic accident in which the claimant was seriously injured. The claim was rendered tetraplegic when he ran out of a side road and into the path of the defendant's vehicle. The defendant's case is though he had no opportunity to avoid the collision and the claimant is the author of his own misfortune. The defendant has filed a defense who denies liability and has refused ad alternative dispute resolution as they feel they have no case to answer the parties, exchange directions, questionnaires. The claim was set out in their proposed directions. The request for expert evidence from 14 different expert disciplines. We've got to use tetra, it's very serious accidents. Um And that uh those experts include a spinal surgeon, a care expert and an accommodation expert at the CC MC. The court orders a split trial. So liability being uh heard first and then quantum afterwards, if the claim is successful and that trial and liability is listed for later that year, what is the likely court order for disclosure in those circumstances? A the court is likely to order standard disclosure by way of disclosure list. B the court is likely to order disclosure by way of disclosure list, but that such disclosure takes place in stages. So that disclosure is limited to those matters relating to liability only at this stage. See, the court is likely to order standard disclosure by way of disclosure list, but such disclosure takes place in stages. So disclosure is limited to those matters relating to liability only at this stage. D the court is likely to order standard disclosure by way of disclosure list, but that such disclosure takes place in stages. So that disclosure is limited to those matters relating to liability and quantum only at this stage. And e the court is likely to order standard disclosure by way of disclosure report on N 263, that such disclosure takes place in stages except disclosure is limited to those matters relating to liability only at this stage. Answer is c the court is likely to order standard disclosure. It's a personal injury case. That's the default order you normally get. But we have disclosure list or list of documents that N 265 interchangeable wording there. But that such disclosure takes place in stages, that disclosure is limited to those matters relating to liability only at this stage. OK. Our size its case management powers. It's done. So ordered a split trial because you had a split trial. So liability is going to be heard. First disclosure will be staged because the reason for that is you don't have a disclosure on quantum because that matter of quantum isn't being dealt with at this stage, it's limited to the matter of liability only at this stage. So a uh it's correct. It's not the single best answer of course was um that's a standard disclosure by our disclosures. That's the default position. But the single best answer is one goes on to explain about the limitations of stage disclosure because of the liability split trial there. Um The um one word missing there. So of course is like it's all the disclosure by a disclosure list. Standard disclosure is important there. OK? Not just disclosure by a disclosure list. Um deep refers to um the stage approach to disclosure, but mens liability and quantum that's not staged, that's everything. Um Basically stage is called liability only first. And of course, um a refers to a disclosure report on a form N 263. This is a personal injury case. Therefore, your N 263 that doesn't uh apply in this case. Thank you very much.

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Part 15 - Webinar

00:30:52

My name is Diane Hackley Green and this is Film 15 in the District Resolution series on the sqe. This film deals with the issue of uh witness evidence. So just summarizing quickly, just in relation to thing I think is quite important uh in relation to generally burdens and standards of proof. As I think I've seen come up quite commonly uh in the sorts of questions of CM MC Qs for sqe. So just remember the burden of proof um is on the party asserting was the facts that with the claimant, if they allege negligence, then they have to prove all the elements of tort, the burden rests on them. Same for a claim to allege his breach of contract has to plead through the existence of the contract. The developments reach the relevant express or implied terms and the clients and the claimants suffered loss as a result. That's important to be aware of that burden for the claimant's bringing the claim, the burden rests on them, but also be aware when the burden does shift. So when the defendant alleges potentially contributing negligence, therefore, the burden shifts on the defendant or alternatively, whether the defendant alleges the claimant failed to mitigate uh their losses and the burden is on the defendant, you know, in those circumstances that the burden of proof, we don't think as well. Standard of proof never changes. Standard proof is the balance of probabilities. So it, we often talk about percentages, you know, 51% or more. I it's more likely than not that the claimant was liable or the claimant was negligent or the defendant was negligence or whatever it may be has the balance of prob uh of probabilities. So when you're preparing the um the witness statements always bear in mind that you only refer to the facts in issue in the matter, also bear in mind which party has to prove which facts consider, which witness can prove which facts. And if there's more than one consider the need for witness evidence from all of them or just the one who's in the best position to prove that fact, you'll see this in relation to the court uh manages the case with this case management powers as well. If you have say a road traffic accident and it's a fast track value and you've got eight independent witnesses to the accident. The court isn't going to allow eight witnesses to give um oral evidence on a fast track trial because that means the trial will last more than a day. So what will happen is a court will say you can have two or, or one or whatever it may be. And therefore what you need to do, um, is assess which witness is the better witness. Which one saw things more clearly, which one comes across as more believable in relating to your client's case. The witness saying it has to be in the witness's own words. That's important. So I often find that, um, when people are drafting witness statements, say after it and accidents, the, the witness then will say something like I got out of my vehicle and I remonstrated with the uh with the defendants and that didn't happen. You got out of the vehicle and there was a slanging match. And you said Xy and Z put those words if they are swear words within the witness statement because that's the witnesses own words, not that they remonstrated uh with the, the defendant, what they actually said when the witness statement is sent um to witness explain the meaning of the statements of truth that some very important and the consequences more important of a false statement being made, consequences of a false statement being made of the proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in her documents prepared in anticipation of or during proceedings and verified by a statement of truth without an honest belief in its truth as a very um serious um consequence in relation to a false statement. Proceedings for contempt of court can result in committal proceedings, prison time. Be aware of that, be also aware in relation to the nature and content of a statement of truth, which is the um uh the statement has to be put on any statements of case. It varies by the nature of the statements of case involved in a sense of what it says. Because you say, I believe the facts stated in this and it's a witness statements, what particular is a claim or defense or whatever it may be. And but the nature of the statement of truth itself is exactly the same. Be aware of it. I think it's worthwhile. You understanding what the statement of truth says because it's such an important element to be aware of that has to go on every statement of case specifically in relation to a witness statement. I believe the facts stated in the witness statements 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 its statement of truth without an honest belief in its truth. So on top of that, on top of the fact that you explain to the witness, look, this is what can happen if you sign that statement of truth without a um an honest belief in its truth. That warning is there in the actual statement of truth that the individual signs in any event. So there's no avoiding that. Sw um be aware, there's sort of a bit of mis misnomer in relation to the fact that lay witnesses cannot give opinion evidence. And dre rule is that, that's right. Uh, opinion evidence is not for a lay witness, um to give they only um state relevant facts uh which they saw or heard. And then the court is the one that draws its own conclusions from that. However, there is an exception to that is where a witness may give a statement of opinion if made as a way of conveying relevant facts, personally perceived by them. So as a way of conveying relevant facts, personally perceived by them, so that rather than stating their opinion, the witness should list the facts which they saw, which led them to reach their conclusion. And therefore that makes their opinion evidence admissible. So the example I've given here is the witness says the claimant's vehicle was uh poorly maintained. So that's opinion evidence. So that's the issue we have there, you're not allowed to do that. However, if you look at the elements of conveying the relevant, that's personally perceived, the clearance vehicle was poorly maintained because I could see a wing mirror hanging off it, it was extremely dirty, it was very rusty and two of the tires were bald. So you look at it, there is setting out the fact that means you reach that conclusion there, you can see that in relation to elements of speed and things like that, you can say effectively that the, um, the defendant's vehicle was speeding. But of course, that's a matter of opinion. However, if you are in, um, the Swan vehicle and you're going at the speed limit and the defendant's vehicle has passed you, then you know that they, they must have been speeding because you're going at the speed limit and the only way they can pass you if they are exceeding the speed limit. So again, it matters in uh based on the facts and the conclusions reached there with regards to supporting your opinion. Um What if you have a witness who does not speak English or English is not their first language. In essence, you have to deal with translation of that statement. So the witness statement has to then be drafted in the witness's own language. What that involves then of course, is the nature of a translator. So you'd have to get the either personal via a phone, um have a translator involved. So you ask a question, the translator translate that question to the um a party witness, whoever it may be the witness answers in their language and the translator then translates it. Uh What then happens is you draft the witness then based upon the information, they're a very long winded process, I'm sure you can imagine. And ultimately, what ends up happening is that the witness has to sign the statement of truth. Uh in and also that statement in their language in their first. OK. If they don't speak English, then that witness statement has to be drafted in say for argument's sake. Turkish, OK. And so then the Turkish witness statement is sent to that witness who signs that witness statement after reading uh and understanding the statement they're giving and of course, they sign up with a statement of truth. What then happens is the translator uh employed will sign the original English um statement, the translation of that statement confirming that it's been translated accurately and certified to that fact. And then what you end up finding and serving is the English version which has a, doesn't have a signed statement of truth on it because it's only the Turkish version which has the sign statement of truth. And then the um the uh statement in the foreign language, Turkish is the example I gave there, which is then um signed. So actually two statements are um are served and don't forget of course, when you have a witness who doesn't speak English as their first language and you're dealing with statements in a foreign language, you also have to think to the, the trial as well, the fact that you're gonna need an interpreter for that witness as well. What about if you have a witness who doesn't speak English or um sorry, who does not speak English or cannot read due to blindness or capacity or educational issues So you're looking up there if someone's blind, so they can't read the statement. Uh and then sign the statement of truth or alternatively, maybe they have limited educational uh abilities. So effectively, their reading capacity is not um good enough. So they can't read that statement and then sign it because they're uh not either illiterate or they're learning uh disability means they're not capable of reading and understanding it clearly. Um What happens is you go through a procedure, a process of certification. So where a person has to verify a document with a statement of truth but is unable to read or sign a document other than by reason uh of language alone. What you do is you contain a certificate made by an authorized person, someone who's able to administer oaths and take affidavits but need not be independent of the parties or the representatives. That's a bit wordy, but basically a solicitor can administer oaths and take affidavits. That's, you're entitled to do that just by your qualification. Uh You need not be independent of the parties of the representative. So if you're uh acting on behalf of a claimant and a witness is someone who is blind, who has learning difficulties, then you can um do the certification. It doesn't need to be an independent person who does that. What happens is that you um go and meet with this individual cos you have to do it in person. You can't do this via any sort of remote process. Um, you have to read the document to the person who's going to approve it. You have to, um, state that the person appeared to understand and approve its contents as accurate. That's important. That's what you're certifying to, um, that the declaration's truth has been read to that person. It's a statement of truth. Uh, the person appeared to understand the declaration and the consequences of making false declarations. And not only do they have to understand the evidence within the statement itself, but also they have to understand the, the uh statement of truth, which they're giving and they're signing to and then that person signs or made their mark in the presence of the authorized person. So in essence, you are ending up with a signed witness statement. That's what you are ending up with. However, that witness statement must also be certified with these matters here and how that's how the process works. Uh Witness evidence for use at trial must be disclosed to your opponents. If a party doesn't disclose witness evidence, uh either by way of court direction or at all, the witness may not be called to give oral evidence unless the court gives permission. Again, that's a sanction. Uh We're looking at a separate um film in relation in relation to specific applications and what's called relief from sanctions. Um There's a sanction here if you don't follow your witness evidence within the accordance with the court directions. Then, uh, basically, it means you can't give, uh, call that witness to give oral evidence. And if that's a key witness as to liability or whatever it may be, that's gonna be really detrimental to your client's claim or eternity even worse. It's your client's own statements. That's it gonna be fundamentally difficult for you to actually prove your case. If you, your own client can't give evidence because of this sanction. And if that happens, of course, then you have to make an application for relief from sanctions or permission, then to be able to rely upon the witness um, statements served out of time. Um The usual directions order in relation to witness evidence is for the mutual and simultaneous exchange of witness statements by a given date. And that's set up within the directions what the parties do when in relation to that mutual exchange is they contact each other and say, look, um, statements are due Wednesday. How about we both pop them in the post first class on, on Monday evening or alternatively, the statements are due Wednesday. Um by 4 p.m. How about we both email them to each other simultaneously at 12 o'clock on Wednesday. Do you agree with your opponent? How that mutual exchange is going to take place? Be aware of witness summaries, useful um, talks and to be aware of cos it changes how you can rely upon um evidence or what you can do when you have uh a witness who's difficult, but whose evidence you really uh would like to rely upon. So if a witness is unwilling or unable to provide a statement for trial voluntarily, then of course, you're unable to rely upon what that witness has to say. If you can't get that witness and to give a statement, to sign a statement to truth, then you have a problem there. Obviously, the absence of that evidence can be damaged into your client's case. Um If you have that above situation, then we look at witness summaries for a witness summary, you need permission of the court. In order to uh rely upon a witness summary, application can be made without notice. And the witness summary must be served at the time of exchange of witness evidence. So in accordance with the directions that you have in regards to witness statements, you also need then your permission to serve the witness summary as well. The whole purpose of a witness summary, it enables you to call a witness to give uh give evidence that that's prohibited. You can't call a witness to give evidence unless you have a signed statement, uh witness statements with a statement of truth that you can call them. Uh by way of you can force them to go by way of a witness. Someone's been served on them. The purpose of a witness summary. The permission granted by the court is it enables you to actually call witness serve, summons upon them, drag them to court, kicking and screaming in order to give, um, their evidence when they're not prepared to do so or sign a statement of truth. Um, with the, the evidence, they're prepared to give the witness summary needs to contain the evidence that would otherwise go within the witness statements. So it could be the fact that you're aware of this witness from a police report and they, um, the witness has completed a witness statement for the criminal case, which is in the civil uh criminal procedure also. So one you can't rely upon within uh the civil proceedings, but you know, the contents given or alternatively, it could be a witness who has given this statement as part of an absent report form that's been completed following maybe a slip and trip at a swimming pool in your local leisure center. And then of course, you just rely upon the detail which is contained within that absent report form to form part of what goes within the witness summary. Uh If the party is serving a summary, doesn't know what evidence will be given the areas about which they propose to question the witness. So it could be the fact that you do know there's a witness to the accidents and you know their name and address, but you don't know what they're gonna say. You don't know what they saw. Um, what you can do then is actually set out with a witness summary, what, how you anticipate to question them in relation to what they did see and where they were, et cetera, et cetera. That's a bit risky. Uh, obviously it's better if you know what is contained, uh, within their evidence because they've, um, completed in an actual report form or a witness statement or a police report a lot riskier if you don't know what they're going to say and you want to uh actually call them to question them. And also you have to put in the witness's name and address. If those are known within the, the summary itself, the court generally approaches the issue of permission for a witness summary with a degree of rigor. So that basically means that they anticipate and expect that uh the party applying for a witness summary has taken all reasonable endeavors to try and get a witness statement signed. You don't just make one call for a witness, haven't heard anything and then just give up and let's have a witness summary. The idea is you've made repeated calls, you sent letters, whatever you need to do and there's been no response or they literally, the witness has actually said no, I have no intention of helping in relation to this case. Then that would justify um the need for a, for a witness summary. You need to be aware of hearsay and how that works in civil proceedings. Uh It's admissible. Um and hearsay is defined as a statement made otherwise than by a person while giving oral evidence in the proceedings, which is tendered as evidence of the matters state. And that's the definition of hearsay. The tel statute. I refer to the word statute quite a bit through when looking at hearsay because, um, hearsay is, uh dominated by or it's dictated to by the civil evidence at 95. You don't need to know the statute of the relevant section. So I'll just generically referred to statutes here. Ums regulates the use of hearsay. So, and when it can be used, but also importantly, the weight to be attached to hearsay by a trial, judge, hearsay is not admissible if the original statement was made by a person who was not competent as a witness because of their mental or physical infirmity or lack of understanding. So common examples of um hearsay uh is when a witness testifies to what another eyewitness saw or heard. So statutory permits you to include hearsay comments with him, a witness statements. Uh The witness's evidence, of course, as to what they saw or heard is first hand evidence, the evidence as to what someone told them they saw or heard is of course, second hand evidence is thus hearsay. So you witness an accident, that's not here. Say that you've seen the accident itself. Um If um Joe Bloggs saw the accident and says that, you know, the uh defendant didn't uh put their indicator on uh and tells you that that's hearsay. And then we got what's called la hearsay is where Mrs Smith says the defendant didn't indicate tells Joe Bloggs. Uh and then Joe Bloggs tells you, Mrs Smith told me that the defendant wasn't indicating that's multiple hearsay are several times uh removed, uh when a witness makes a witness statement but cannot attend trial. So tendering a witness statement in place of a witness, given oral testimony constitutes your reliance upon here saying that's a more common. Um I suppose uh procedure you'd see in relation to use of here, say when you've got a witness statement, it's signed, but you don't, the witness doesn't turn up or that you don't intend to call that witness. So the weight attached to hearsay. So obviously, the court is unlikely to place as much weight uh upon hearsay as it will. On first hand evidence of the party given oral evidence. That's the, the trial itself. But how much weight is applied to hearsay. Um Statute states, the court has regard to six factors in this. So those are whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness where the original statement was made contemporaneously with the existence or occurrence of the matter stated. Uh whether the evidence involved multiple hearsay, whether any person involved had any motive to conceal or misrepresent matters whether the original statement was an edited account was made in collaboration with another or for a particular purpose and whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight. All those are matters of the court bears in mind in relation to hearsay. I think some of the more common ones there is whether the original statement was made contemporaneously. Um So if you draft and sign a witness statement the day after the accident, that's much stronger in relation to relying upon matters here, saying the way to be attached to it than someone who actually um, signs a witness statement five years later during the course of the litigation. And would it would have been reasonable and practicable. So there's circumstances why you can't call them whether they've maybe um emigrated or maybe they died. So that would look at the reasonable and practical circumstances there. And uh just to find a way to be attached to it, generally, what will happen following the trials, the judge will set out in their judgments, the weight they've attached to that here saying the reasoning for that boy referenced those six factors. So what is the procedure then in relation to um, hearsay itself? Um Basically, any party wishing to reduce hearsay, evidence needs a certain notice upon their opponents. And the type of hearsay determines the notice to be given in relation to that. So whether the hearsay is given by a witness attending court to give evidence. So what we have is that example I gave you of Joe Bloggs um told you that the defendant wasn't indicating you put that within your witness statements and service of that witness statement during the course of the proceedings. That's sufficient notice in relation to that here. So it's contained within a witness statement. That's it. That's all you need where the evidence is contained in a witness statement by a person not giving oral evidence or contain something else. It's not uh um Fetty sours temperature truth. Then you need a formal notice with the service of the witness evidence in that scenario. So the notice needs to identify the hearsay that it would be relied upon in court and why the witness will not be called. So in that situation where we're looking at hearsay by someone, maybe they've signed a witness statement, the statement of truth, but then they've emigrated. Alternatively, they've died. Um then effectively, you'd need uh a notice to go with that witness statement when you serve it in accordance with court directions. There's no specific documents um that sets out the format of the hearsay, notice those um core element there. Um The notice, the way it, there's two different names for it. Really the Civil Evidence Act notice is the formal name for it because of course, it follows the Civil Evidence Act 1995 and that dictates how and when hearsay can be used and the weight to be attached to hearsay evidence. Uh It's also called a hearsay notice. Both those, that terminology is uh interchangeable. But what we need to be aware of is, of course, is the need for notice. That's important. What happens if you don't, you notice in essence, um, not much, arguably, uh it doesn't affect the admissibility of that hearsay. So just because, um, you don't, um, file a notice with the witness statements, um, um, and that witness isn't going to give oral evidence at the trial doesn't mean to say, then you can't rely upon that statement as hearsay doesn't work that way, but the court could exercise its discretion when consuming the weight to be attached to that, um, hearsay. Um, I will tell you the question of cost in relation to the failure to serve the hearsay notice accordingly. So how do you address your opponent's reliance upon here? Say, so if your opponent decides to take the option, actually serve it here, say, notice or rely upon here, say, what can you do? How can you respond to that? So one of two things as, um, the opponent to this, you can make an application to cross examine, uh, the individual in question. So that could be where, uh, well, it'd be pointless. Obviously, if you've got a witness sentence signed by a witness and they died, um, because you can't cross examine the dead. But if you've got a witness maybe where they have moved and that's the reason why, um, they're not going to be called to give oral evidence, but they've only just moved around the corner, uh, for whatever reason, then the defendant can say no, they, they need to give evidence. There may not be a justifiable reason as to why, um, the party, uh, wants to rely upon, um, that witness statement is here. So in all honesty, what the justifiable reason could be is that the witness is really weak. Uh when giving all testimony, their evidence is much stronger in a witness statement. And you'd sooner rely upon that as hearsay and have that witness give all testimony and fall apart on the stand. So what the opponent can do in response to that is of course, make an application uh to call the maker of that hearsay statement to report to be cross examined. Application needs to be made no later than 14 days after service of the hearsay. Notice, other option open to you. If you don't want to go down the route of cross examination at PB, cross examination isn't possible cos they're dead or they've emigrated to Australia or whatever it may be. Um Or alternatively, cross examination is too cost low. You've got a low value case and the um the, the witnesses move to the other side of the country. Therefore, their travel expenses aren't gonna be justified in case of a limited value, what you can do, of course, is attack credibility. That's another way of dealing with your opponent's reliance upon hearsay. Um It's done by certain what's called a notice to attack credibility uh within 14 days again of service of the hearsay notice. Um Again, there's no specific form in relation to that just like the Civil Evidence Act notice or the hearsay notice, no specific form. It follows a sort of format of a civil evidence evidence act notice or a hearsay notice and sets out the reasons why you wish to seek to attack the witnesses credibility. Um, that could be on the grounds of potentially previous convictions for some sort of dishonesty offenses, fraud or whatever it may be or it could be a previous inconsistent statement, um, that you wish to draw to their, uh, the court's attention show their evidence has been inconsistent to your attack and credibility on those grounds. When looking at previous inconsistent state statements, we need to think about these in a bit more detail. So where a party calls a witness to give evidence at the trial, the opposing party may wish to cross examine the witness about a previous inconsistent statement but will be only be able to do so if they comply with the requirements of statutes, the Civil Evidence Act, uh, Civil Evidence Act, um, concerning the use of hearsay evidence. So examples of this could be where a, uh, a defendant has, uh, after, uh, a road traffic accident was given a police and criminal evidence act interview. And during the course of that interview has made some statements which are inconsistent with the statement that they have signed in the course of the civil proceedings. So what are you looking at? There is a previous inconsistent statement, but because it's a heresy issue, you're gonna rely upon that period's inconsistent statements, you need to serve a hear. So notice with that, a copy of that Pace interview, other examples could be where, um, the claimants in a person injury claim has made some sort of statement to their GP about their injuries or about something which, um, is inconsistent again with their case. Um Again, the same rules apply in relation to the need for a hearsay notice. The idea is that the early inconsistent statements is treated as evidence of its content. So you can affect the credibility of the evidence that witness uh will give be aware as well of notices to admit they're not particularly common uh uh in, in practice, but they are, uh, so that you need to be aware of SQ eight. So basically a party may serve a notice in another party requiring them to admit um, certain facts or a part of the case of the other party, which is specified within that notice. Basically what happens is you state a fact and then, um, the party upon whom you're serving that notice to admit those facts has to either admit it or, or not admit it. That's the, the response needed, uh, a notice to remit facts must be said no later than 21 days before the trial. If a party upon whom the notice uh, is served, refuses to admit the relevant fact, the other party will be required obviously to prove that fact at trial. However, where they do so, the court may take that into account in considering the issue of costs, the conduct issue as well and effectively though how it can work in relation to a notice to admit is, um, if you serve a notice to admit, but then, and your opponent and fails to respond or refuses to respond to it or denies it and then you subtly prove it. Even if you're unsuccessful in the claim, you may be able to recover your costs in relation to that uh element because in essence, you prove that fact and the uh defendants or that your opponent has failed to respond to that notice to admit appropriately. But let's look at a question um in this area then, so you act on behalf of the claimant in a personal injury claim. The claimant slipped on wet stairs at his local library. The claim is worth circa 20,000 pounds. The defendant is disputing liability. They allege that the stairs were dry and the claimant was running and tripped. They obtain a copy of the accident report form which sets out the details of an independent witness who supports the claimant's claim. You draft a witness statement from this witness which they have signed. Their actions have been set down. The trial is listed for later this year. The date for service of witness evidence approaches witness telephone is due to advise that they're not gonna be able to attend trial as are due to emigrate to Australia next week. What steps should you now take? So a you should file and serve a hearsay notice along with a copy of the accident report formed by the date the court has ordered. Witness evidence speaks changed. B you should file and serve a hearsay notice along with a summoned witness statement by the date the court has ordered witness evidence speaks changed. See, you should draft a witness summary of the evidence contained within the accident report form including the witness's name and address. You must apply to the court for permission to serve a witness summary and such application can be made without notice. The witness summary must then be served by the date that the court has ordered witness evidence to be exchanged. D you should file and serve the signed witness statement by the date. The court has ordered witness evidence to be exchanged or e you should file and serve the signed witness statement by the date the court has ordered witness evidence uh to be exchanged. You should file and serve a hearsay notice at least 14 days before trial. Correct answer is b you should defile of a hearsay notice along with a signed witness statement by the d the court has ordered witness evidence to be exchanged. You've got a sign, witness statements, your witness uh, isn't intending on appearing at the trial. So you're going to be relying upon that evidence as hearsay cos he's emigrated off to Australia. So therefore, when you serve the witness statement in accordance with directions, you serve it along with a hearsay notice or aim evidence that notice. Um So while the other answer is not the single best answer or not correct. So a you should file a over here, say notice along with a copy of the accident report form, uh you've got to sign witness statement. So that's the main thing you wouldn't worry about the uh the copy of the accident report form um being signed because you've got a witness statement, the statement of truth. So you wouldn't need to worry about it or serve the the accident report form itself. The witness statement signed witness statement alone is enough. Um See you should draft a witness summary. The process there explain is the right process in relation to a witness summary. But the purpose of a witness summary is where you have a witness who won't uh assist, who won't sign a witness statement. So the idea is you sort of summarize their evidence, it enables you to be able then to serve a summons on them and to drag them, kicking and screaming to the the future trial. Um The you should follow and serve the signed witness statement by the date the court has ordered from an air, of course, is that's the usual process you follow, but of course, you know that witness won't be able to attend the trial. So you're gonna be relying upon that statement as here. Say, so therefore, you need to serve you here to say no or civil evidence that notice at the time you serve the witness evidence. And e uh refers to when you serve a hearsay notice at least 14 days before trial. But that's wrong. Of course, you do need to serve a hearsay notice with the witness Deb in accordance with the uh the court directions. Thank you very much.

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Part 16 - Webinar

00:30:46

Hello, my name's Darren Hackley Green. Uh This is film 16 in the dispute resolution series for the SQE uh we're now going to deal with expert evidence. So, in relation to uh an expert, so the CPR procedure rules defines an expert as a person who's been instructed to give or prepare expert evidence for the purpose of proceedings. Uh Reality of that uh is an expert can be anyone um anyone with a knowledge or expertise of a particular field uh over and above that of a lay individual doesn't necessarily have to be professional qualifications. You don't have to have like a, an extensive CV of all the uh relevant qualifications you've got, it can actually be experience in the field uh or something that you've been doing, you know, uh a specific job over the course of the last 40 years and have gained the expert uh expertise in that field by hands on. Uh experience Statute actually sets out a test for calling an expert witness in civil proceedings that being the expert may give their opinion on any relevant matter and the expert must be qualified to give that opinion. So again, coming down to that qualification. They just narrow your thoughts down in relation to extensive CV and all the exams, et cetera and tests done. Do you think about also um, experience in the field? So experts, uh unlike lay witnesses are able to give opinion evidence and the duty of the expert is to help the court on matters within that expert's expertise. And that duty overrides any obligation to the person from whom they've received the instructions or who's paying them. It's the important thing to bear in mind in relation to an expert. Their first duty is to the court yet not to the other party who instructs them in relation to the weight of expert evidence. Uh The weight the judge will attribute to the evidence of an expert. Depends on, on various different factors. To me, the extent which they back up their opinions with literature and scientific studies. Uh the degree to which they accept and analyze alternative views and conclusions as opposed to taking a steadfast approach to their opinion and refuse to consider uh other opinions and other factors, uh their status qualifications and experience as well as their response under cross examination. In fact, there's no obligation for the court to accept the evidence of an expert over that of a, of a lay witness. So if you had an expert say on liability and accident reconstruction, expert, talking about the mechanisms of a collision being the fact that, you know, maybe the the brake lights were not showing before the rear end collision. But you've got a lay witness who says I saw the brake lights on, I saw them shine prior to the collision. The judge is perfectly within their rights to take uh the evidence of the lay witness over and above that of the expert is not like a uh awaiting issue there in relation to the fact. The expert gives an opinion. You have to follow that opinion up to the judge themselves in relation to elements of uh independence. The requirement to be independent is crucial in relation to the litigation process. As long as that independence uh can be shown the courts have um held in certain circumstances that using an expert with a close connection to a party may not always bar instructing uh an expert may not automatically mean that their evidence is inadmissible. If you think of the situation where you have a limited number of experts in a particular field, say for argument's sake, I don't know, you've got a uh contractual dispute over the nature of diamond mining or something like that in, in South Africa. And you've got a limited number of uh experts in relation to diamond mining in the mines of um South Africa and some of those experts you've worked with before, which may mean they are not independent, doesn't stop them being able to give an opinion as long as they can confirm that their first duty is to the court and that they can give an independent opinion, doesn't mean to say they'd be barred from actually, um, giving that evidence. Well, I would say, is a little bit different when you've got, uh, an individual, an expert who's been, who's treated an individual who's been injured, injured as a result of a personal injury claim. Because then the expert will have a bit of a conflict there. So, for argument's sake, because the expert, when treating a patient, of course, their primary duty is to that patient. And but when they're a part 36 ex part 35 expert for the court, their first duty is to the court, that's where you've got a conflict. So if you've had an expert, a medical expert who's involved in the treatment of an individual, that would generally mean they, they wouldn't be suitable to be uh an expert for the uh for the court. The general rule though is if the expert feels they can act independently, there's no reason why they shouldn't um uh continuing the matter alternatively, of course, they are within their right to decline to act if they feel they cannot act independently independently because of some connection with either of the parties in the case. So in relation to the report, so you get your expert or instruct the expert invariably what will happen is the, that will prepare a, a written report in relation to the matters which they're instructed upon. So the report needs to be addressed to the court not to the party who has instructed them. Uh the various requirements of that report. Um The fundamental ones I've, I've set out here have been that the uh the report gives details of the expert's qualifications, give details of any literature or material which the expert has relied upon in making that report and reaching um, their conclusions in their opinion. Makes clear the uh which of the facts stated in the report are within their own knowledge where there's a range of opinion, the matter is dealt with in the report. They summarize that range of opinion and also give reasons for their own opinion in relation to that report needs to be verified by a statement of truth. And also contains a statement that the uh expert understands that their duty is to the court. They're just fundamental requirements in relation to the uh the report itself. When using expert evidence, we've seen uh in the reaction Protocol um film about the use of experts at that stage. So just as a bit of a reminder about that, uh the idea is a general aim is for the expert to be agreed uh in the creation Protocol phase. When it comes to posts, issue, extra evidence is closely controlled by the courts. And to be honest with you, it's probably um the one area where the court, the court has most involvements in relation to um what, uh, they allow to happen, um, during speaking, because the court will have one eye proportionality and every step of the way following the overriding objective. And of course, expert evidence is a, uh, probably the biggest cost of litigation with regards to the experts fees because not just the experts preparing a report. Um, there's things in relation to questions and the charges for questions, whether there's a need for a joint statement, which we'll look at in, in a moment of the neath or evidence and things like that, the, the fees can then be astronomical. I recently had a quote in for three different experts, uh, orthopedic surgeon, rheumatologist, and a psychiatrist for a trial. Um, it's a three day trial and uh, I think one of them is 10,000 pounds per day and the other is like 8.5 1000 pounds massive amounts of money, which can really, um make the, the case disproportionate if you're not careful. Um, the court obviously needs to give permission for expert evidence to be used. And that's the core element there. You only get to use expert evidence if the court has given you that permission, any extra evidence which is obtained before you issue court proceedings, uh, as we've seen will be served with the claim form and particulars of claimant Alex to that. So that, that evidence is what you should rely upon. Um, of course, what you also will need, uh at a later stage is permission to rely upon that. Just because you've served it and already obtained. It doesn't mean to say it's an automatic right that you get to rely upon that. Generally, though, if you've obtained it and you've served it and it is of use, the court would generally grant you permission in relation to that uh expert evidence. Um The initial use and request for the use of expert evidence comes with the directions questionnaires which we've seen in relation to the extra evidence, you wish to use the future expert evidence you wish to use and you'll set that out within your directions. And of course, any irrelevant um budget will detail the costs of that um as well. And then at a later stage, uh whether your grant permission depends on where the the case goes, of course and what track it goes to. So if you're just gonna go to a fast track case, it will, it will generally not be considered without a uh it will be generally considered without AC MC or AC C MC. Um But if you of course, have a larger value case intermediate track invariably multi track, uh then you'll have AC C MC AC and case management conference and then consideration will be given then to the um directions in relation to expert evidence and of course resource and budgeting in relation to what fees you're allowed to recover in relation to that expert evidence of course, after that stage, um if then later say you wish to obtain further expert evidence doesn't mean to say just because you've got directions that doesn't give you permission that you can't have any further expert evidence. That's just simply an application to the uh to the court for a request for permission to rely upon further expert evidence. That may be something we've just come out as a result of the expert evidence you have had permission to obtain. Maybe you go to a, a rheumatologist who then recommends the instruction of a pain management expert and that wasn't considered at the time that you sought directions. So if I'm making an application for that uh further uh medical report, um would hopefully um the court's approval. But again, you need to bear in mind if you are making an application and now you're looking at further expert evidence and it is a case which is budgeted. You need to think about increasing your budget as well with the um the presidency, which is the variation of the budget because of course, there will be further costs that you need budgeting in relation to that additional expert evidence, no evidence may be reduced without permission of the court. Um As I said before, that's important. It's the courtly size, what expert evidence is allowed. Um In fact or intermediate track cases, you may experience what's called cost capping. That's a bit like budgeting. But for cases where you don't budget. So what um the court may say or may do is um think about you've requested permission to obtain maybe the uh report from a consultant psychiatrist because your client has psychiatric injuries. The court isn't satisfied that there may, that may be uh proportionate uh uh is cautious in relation to the cost of that. So what the court may do is they may say, yeah, you can instruct a consultant psychiatrist, but the maximum sum that you can recover for that report is 750 pounds. For example, what that means? Um is that uh the cost in relation to that report is limited to that 750 pounds doesn't mean to say that you um can't uh instruct an expert for 1000 pounds because that's 250 pounds more than you're allowed. Just basically means you're not able to recover from your opponent. That additional sum that additional 250 pounds. It also generally means that if you're limited to a certain sum that you go have to go shopping around and try to find an expert who's able to prepare a report for the sum which has been um committed by the court in relation to that cost capping exercise. Um quite common, quite common when the court doesn't want to prejudice a party by saying no to permission for expert evidence, but is cautious about proportionality. So therefore we have the cost capping exercise. The main things that a party seeking to reduce expert evidence must satisfy. The quarter part are that, that expert evidence is necessary either at all or in that particular field. And that the expert evidence is proportionate to the case case and issues both proportionate to cost and time proportionality is a massive one. When it comes to expert evidence. It's the justification for expert evidence. And also maybe it's the reason why the court says no expert evidence uh is not permitted in a particular field, but it's not proportionate to allow that. So what sort of examples of extra evidence orders would you um end up um seeing? So you may get no extra evidence being necessary so that no party has permission to rely upon expert evidence or straight denial of expert evidence. The other two orders are that a party may instruct its own expert and that may be a claimant may instruct its own expert in a particular field. And also the defendant may have what's called parity of arms. So instruct their own experts in the same field. So payments as a consultant, orthopedic surgeon over an injury claim, the event has an orthopedic surgeon as well. Alternatively, what the company may order is the parties instruct a single joint expert, single joint expert is one expert which is instructed by both parties jointly. So when that expert produces their report, that report is sent to both parties at the same time um Usually the parties are given an opportunity to agree that experts themselves and also to agree that that's of instruction. If the parties cannot agree, the expert, then you need to get the court uh involved in relation to um agreeing the, the experts uh themselves. However, you are going to meet the court's wrath if the court a single joint expert, um it's fine but the parties just can't agree on who they want to instruct. Um, the court's not going to be happy having to deal with an application when the court has to decide because the parties can't agree in relation to the contents of the letter of instruction. In essence, if you can't agree, you can't enter the letter of instruction with your opponents, then it's ok. The court of appeal has held this, it's ok to send um your own letter of instruction, both parties to that expert. So the expert, the single jointed expert ends up with having effectively two letters of instructions sent to them. Um in relation to single choice experts, he's worth understanding the, the rules depending on the track. So on a fast and intermediate track, the court must give directions for a single joint experts unless there's good reason not to. So there we have effectively that, that, that is the exception uh uh going away from a single joint expert exception on the f and intermediate track on the multi track situation is similar, but the court is urged to uh use a single joint expert. Although what you tend to find, unless it's a case of a relatively limited um value that multi track cases, you don't tend to see single joint experts very often. So when you instruct a single joint expert, be mindful of the fact, because both parties are instructing that expert jointly, any communication between you and that expert, you have to copy in your opponents, otherwise you could fall foul of some arguments. In fact, you're trying to influence that expert's evidence in your client's favor. So because a joint expert always copying your opponents, that basically means trying to avoid um telephone communication if you can. Because then that caused question in relation to what you've said to that expert, basically writing to them, sending them an email, copying your opponents in relation to that parties are joint and severally liable for the single joint experts fees unless the court orders otherwise, um generally speaking, if you're a claimant Tosu a claim for personal injury, even if you are settling the single joint experts fees in full, of course, if you're successful, you just claim back the thoughts of that single joint experts fees. A conclusion in your uh your claim for costs. Looking at a summary in relation to where we are with regards to the advantages and disadvantages of a single joint expert. So the advantage is it cheaper? Actually only one expert, uh it's quicker, at least you have one opinion. So there's no need for the joint statement phase, which we'll look at in a, in a moment, uh, less likely a need for oral evidence at trial. Cos you've only got one opinion, why would you need uh, oral evidence if you've only got one expert, giving an opinion in relation to the matter? And of course, it encourages settlement because you have that limitation to opinion. So you have opinion, you have your report. That's the evidence in the case. As opposed to having two contradictory opinions from different experts for each party disadvantages. You can't have a discussion with the experts on the more difficult parts of their report or the parts you wish to challenge. You'd see that when you shot your own experts and you get your own experts report. And there's certainly within that report which you uh are not happy with needs clarification. You can pick up the phone and have a conference with that expert. Look at potentially amending that report to incorporate um or expand upon what has been said, can't do that with a single joint expert. It's difficult to dispute as in the joint to expert's opinion. If it goes against your client's case, there's no unfettered choice. Excuse me. As to the expert, you wish to instruct because of course, that uh expert has to be agreed with your opponent. You just can't go off and choose whatever expert you want. You may still need to instruct what's called an expert advisor and one of the experts advisor in the moment. So therefore, there is an additional cost involved in that and courts are reluctant obviously to um order oral extra evidence from single joint access. The reason being because there's only one expert, giving one opinion. What happens if you have an unfavorable single joint expert? So if you've got a single joint expert who's really gone against your client in relation to the report, they give um very use regardless from the court of appeal in relation to this, you're not dead in the water. There are options for you. So where you are dissatisfied with the expert's report, the first thing you need to do is ask questions of that expert. So the questions seek to clarify that expert's evidence, you query the nature of why that experts reach the conclusions. They have. We try and explore that. And it's what if that doesn't resolve the problem, then the party who's not happy with that single joint expert can apply to the court for permission to call another expert. The application will be granted. If the court sat aside, it would be unjust and regard again to the overriding objective to refuse to allow the further evidence to be called a bit of a difficult thing to ask for there just because you're not happy with a single joint expert. You want another opinion. Um But of course, what you'd have to look at is if the single joint expert has come to that conclusion, not justified it in any way, maybe has mentioned things which just don't follow on with their own opinion that could be justification and for moving away and getting another expert involved in the case. So in relation to each party engaging their own expert, again, um quite common on the the higher value cases, multi track value cases, um it can be justified where there are several tenable schools of thought on the issue in question, where you've got complex issues where the issues are so important as the likely outcome of the case, it could be in relation to liability which is a win or lose um situation and and reconstruction experts are going to be essential in relation to reaching a conclusion with regards to that. But where the value of the claim doesn't make that disproportionate uh or whether the parties have instructed their own experts, reissue. It's therefore easier just to carry on with those experts than simply just get a new single joint expert on. Um the matter that could be where for example, you've got your own orthopedic surgeon reissue and you have allowed for the defendant to obtain their own orthopedic evidence also Preiss issue when you get into litigation. Um Why would the court then simply say right, single joint experts, orthopedic surgeon, when you've both got your own parties in any event, it's probably easier just to continue with each party, um, with their own expert evidence in relation to that. So, what's the procedure when you've got, um, each party with their own, um, expert, um, report or expert evidence? And basically there is an order for mutual exchange of those reports. Mutual exchange is the usual way forward. Sometimes we can have what's called sequential exchange. Sequential exchange is where the claimant will disclose their report first and then the defendant gets to re uh disclose their report later on if they wish to rely upon um, that report, I don't think he likes sequential exchange. Uh The reason being, of course, because use of your report, if the defendant has a report which is more favorable to your client than uh your own report, the defendant will simply say, ok, we're not gonna serve our own. We'll just rely upon what the claimant has to say as opposed to where you've got mutually exchange. But there's no choice in the matter. Those reports are both in the forum and both utilized in the, in the litigation. Then farmers, once you've served these reports, questions of um the expert and that's uh accompanied by replies to those um, those questions we'll move on uh in a moment in relation to looking at questions, cos they have their own specific rules behind them. After the questions, you then have joint statements between the experts. That's where experts of like discipline. So to orthopedic surgeons or to psychiatrists for argument's sake will have a discussion about the issues to try and narrow down the matters between them and this joint statement, what they produce is it's a joint statement which confirms the matters upon which they agree the matters upon which they disagree and why they disagree in relation to those issues. It narrows down matters. So it gets to the core of what are the issues in relation to the medical evidence here. And the importance in relation to joint statements is that when you're thinking about applications for oral evidence from experts, the joint statements are going to be essential. So for example, if you've got two psychiatrists who disagree over the prognosis period, for recovery from the claim for the claimant from their PTSD, their post traumatic stress disorder. If your expert says three months and their expert says one month, who's gonna think it was two months difference? Yeah. Uh we're not gonna justify expert evidence over that minimal period. So therefore, no, we're not gonna have permission for oral expert evidence from those experts as opposed to where we have. So the claimants saying, um uh experts saying PTSD it's permanent um and life uh long lasting. And the defendant's expert says that the claimant will recover within the next year. A uh a contrast there quite significant contrast. Therefore, there may then be a justification for all expert evidence following those joint statements. And then in relation to uh the preparation of the joint statements. What you can do as a instructing parties, you can prepare an agenda for the experts to consider. Well, generally speaking, just let them get on with it and discuss their reports between themselves and then what you then think about with uh the next step. Of course, following the joint statements is that need for oral evidence or not in relation to those questions I mentioned of the expert, it's important to be aware of is written questions uh may only be put once and must be put within 28 days of service of the expert's report. Unless of course, you've got a court direction which is a different um time uh in relation to that which you're likely to have. You're gonna have a court order gives you permission to um serve or rely upon expert evidence to be served by a certain date. What we generally follow is permission for the questions to be raised by a certain date and then replies by a date thereafter. Um 28 days comes in relation to if there's no such direction given important to be aware that questions must only be to clarify the uh the report. So they're not there to be used to cross examine an expert and questions are wholly disproportionate or overwhelmingly not for the purpose of clarification. An amount of cross examination won't be uh allowed. They'll be disallowed the answers to those questions. The replies are treated as part of the expert's report. Interestingly, you can only ask questions of your um, opponent's experts or under the party's expert, you can't ask questions of your own experts. Um Although that's within the rules, it's largely a rule which is tends to be ignored by the majority of people. You do tend to see questions asked of parties' own experts all the time and no issue being raised in relation to that. But shortly speaking, um you know, you can only ask questions of your opponent's expert. The expert is entitled to ask the court for directions to assist them in carrying out their responsibilities and duties to the court. So that could come where the um an expert has been asked questions um by uh uh another party. If the questions are overwhelmingly disproportionate, if they seek to cross examine as opposed to clarify, then the expert is entitled to go to the court and question, do I need to reply to these? Is it right that I should reply to these in light of the nature of the other questions raised. If the estimate does seek assistance from the court, then the need to uh let those instructing them have a copy of that request before it goes to the court at least seven days before it goes to the court and all of the parties at least four days before they actually find it or expert evidence uh is often a logistical nightmare in all honesty because you have to think about um what evidence those experts have to hear. So if you've got um accident reconstruction experts on liability, they'll need to be there to hear the parties and the, and the lay witnesses give evidence in relation to the circumstances because that may be relevant to their opinion. So often you've got a four day trial you think about, well, do you need the expert for all four days? Do they only need to hear the claimant's evidence on a certain point or if they are on some experts? Can they come in at day three as opposed to day one and two, cos that deals with the element of liability. So lots of issues to think about in relation to the logistic uh logistical circumstances. The other thing that can happen is um the word hot tubbing. So hot tubbing uh is fairly common. It's where both experts of like discipline take the stand at the same time. So rather than say, uh the claimant's uh action reconstruction expert giving evidence and then being cross examined and then going to sit down and then defendant's expert uh uh accident reconstruction expert giving evidence, being cross examined and going to sit down often you can have both um claimants and defendants at some reconstruction experts as examples. Um on the stand at the same time, this is the hot topping approach and they may he asked about one particular point about the elements of speech. So the claimant's expert gives their opinion. The defendant's expert gives their opinion so effectively you have the fact that on each of the individual elements that are considered, you have that evidence straight before the court at the same time, rather than just dealing with things all in one go and then again, in another, uh, job lock, um, if you have an unfavorable um, expert, uh then you need to make an application to the court obviously to uh obtain an alternative report because you're not happy with. The one that you've obtained generally, the rules are that if you're going to do that, it's upon the condition that you disclose the expert report you're not happy with. And you need to, of course, explain to the court why you're not happy with it. Not just you just don't like their opinion, uh but maybe something fundamentally wrong in relation to that why you are. Um you wish to go for an order for uh further expert uh evidence, you have to bear in mind that what's called expert shopping is generally frowned upon in dispute resolution. You can't just keep going around um different experts until you find the one you're happy. Um supports the, the claimant's case and maximize his their claim for damages as much as possible. Um If an expert significantly alters an opinion as a result of a discussion in preparation for a, a joint statement, the joint statement needs to include a note or an addendum by that expert explaining the change of opinion. That's just basically where your experts or the defense expert is just gonna complete u turn in relation to their opinion and it agrees with their, their opponents well, to do so, you need to justify that or the expert needs to justify the reason why they've done that. There are loads of different types of um experts. You may uh end up instructing you got the expert advisor uh treating experts. Of course, uh rehabilitation experts, part 35 expert is what we do with generally, which is the medical legal um experts, also expert assessors which are there really to help uh the court on particular point? Right. Let's try a ma practice question in relation to this area. You act on behalf of the claimant in a person you claim following a fall from scaffolding whilst at work, claimant fractures his leg and had a soft tissue back injury. Prior to issuing service, you obtained medical evidence from a consultant orthopedic surgeon and a consultant psychiatrist. The defendant obtained permission to obtain their own medical evidence from both the consultant orthopedic surgeon and a consultant psychiatrist. So both parties have got parity of arms in relation to expert evidence. So to serve their medical evidence and their orthopedic surgeon's opinion is that the soft issue back injury is an acceleration of an underlying condition. There is no justification for this opinion and no reference to any supporting medical records. What would be the best step for you to now take as the representative for the claimant. So a you should ask questions of the defendant's expert within 28 days of service of their report. Such questions would be to clarify the report and can only pick up once b you should uh the claimant's orthopedic uh surgeon question, the defendant's orthopedic surgeon. Uh as part of the joint statement process. C you should make an application to strike out the defendant's orthopedic surgeon's report. D you should ask the claimant's to consult an orthopedic surgeon to send some questions of the defendant's orthopedic surgeon within 28 days uh of service of their report. Those questions being to clarify the report and uh can only be at once e there's nothing you can do. This is the defendant's orthopedic surgeon and not the claimant's answer is a ask questions within 28 days. Uh And those questions obviously to clarify the report can only be put once. That's the, the correct answer. What about the other answers? Why they're not correct or not the single best answer. Um So be you should let the claimant's Ortho surgeon question, the defendant's orthopedic surgeons, part of the joint statement that can happen uh and that will happen uh as part of the joint statement process. However, it's always better to seek the clarification prior to that. So at least you can actually have the opportunity to query why uh this uh uh opinion has been given prior to just simply going into the joint statement. Um stage. See, uh that's incorrect. Um There, there's no justification to strike out the, the report just because the, you don't like the expert's opinion or they haven't justified that opinion. Um D is incorrect because that's not the right procedure. The right to ask questions is the legal representatives. You, um you don't ask the defend your orthopedic surgeon to draft those questions in relation to the one you're gonna ask of your opponent's experts and e uh is incorrect in relation to. There's nothing you can do. There is something you can do. You can of course ask questions, which is the rights are entitled to do just to clarify the reason why the defendant's expert has come to the conclusion they have come to. Thank you very much.

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Part 17 - Webinar

00:31:46

Hello, my name is Darren Hackley Green. This is film 17 in the series of films for dispute resolution for the sqe. Uh This film deals with part 36 offers and general settlement um terms. Let's have a look at what the sqe assessment criteria needs you to understand in relation to this readiness for the exam, uh discontinuance and settlement, the element of costs involved with that in part 36 and other uh types of offers which we're going to look at in turn uh now, so what are part 36 offers? They are formal offers to settle a claim or part of a claim. Um So they can settle the claim in its totality. So here's a sum of 100,000 pounds in settlement of the whole of your claim for personal injury. Or alternatively, they can be for a finite element. So they can be for maybe the aspect of liability or contributing negligence often settle the claim on a 5050 split basis or um on a 7525 basis, reducing 25% for the claimant's failure to wear their seatbelt. That's the element of contribution negligence uh involved they're made only without prejudiced costs and basis. The only important thing about part 36 offers you're seeing in a moment is they are open indefinitely until they're withdrawn by the person who's offered it, they offer all, um, that's even if they're rejected. So they work differently to other forms of offers because as we know with other forms of attraction agreements, rejection that ends the, the offer in essence doesn't happen with part 36 offers, you can reject them, but there's nothing happens. They're still there to be accepted as long as they haven't been withdrawn if they stay on the table indefinitely until that period has been until they've been drawn. The idea is the defendant's liability for the offeree costs ceases upon the day that part 36 is accepted. There are five mandatory requirements in relation to the formulation of a part 36 offer. Uh First, it has to be made in writing. You can either do that uh in a letter that is absolutely fine. Um Or alternatively, you can use a specified form which is your N 242. A, you then have to use that form. The benefit of using the form is with regards to the boxes that you need to complete. It covers all of the mandatory requirements. So it means you avoid missing one off and ending up with making an invalid part 36 offer. Uh The offer uh if you're not going to utilize four N 242 A uh State needs to state its pursuant to part 36 need to specify a period of time of not less than 21 days, which is called the relevant period within which the defendant will be liable for the claimant's costs if accepted. That's an important element there with regards to a relevant period, minimum of 21 days there. Uh And we'll talk about the effects of um the expiry of that period. Um It later, uh it needs to say whether it's made in respect of the whole or part of the claim and needs to state whether it takes into account any counterclaim in the action. So when can a part 36 offer um be made you made in any type of proceedings? Um Give you a pre and post issue which is important, come at any point in the um the conduct of a claim just be uh minded in relation to where you've got a child or a protected party. Um When the offeree uh expresses a willingness to accept that part 36 offer, that offer, that acceptance is not valid unless the court approves the same. So that's basically effectively where with any sort of individual child or protected party, the court has to approve the settlement. We've seen that um in another vid another film. Um And so making the part 36 of which she only expresses a willingness to accept the terms of the saying, it doesn't result in accept a formal settlement until the court has approve that the time when apart the SOC six offer is made. He's when he served on the the offeree. So the deem dates of service uh apply in relation to anything other than a claim or important things you can do in relation to a part 36 offer. One important elements, there is clarification. So the rules are that the offeree that's receiving the offer is seven days within which to request clarification of an offer. It could be the fact you have a claim where there is a dispute on liability, a dispute on contributing negligence as well as this dispute on quantum. The defendant then makes an offer is say 100,000 pounds, but you've got no idea how that's broken down. You have no idea what element has been reduced by for the aspects of liability. Is it half of the value of the case? Because it represents a 50% reduction for um for liability or, or elements of contributing negligence? Whatever it may be. The idea is you can seek clarification of that offer within seven days. Um An offeree who has not received any or any adequate clarification after that request, um may apply to the court for an order that the opponent do so and the provision doesn't apply. Of course, if the trial has started any information provided by the offer or in relation to clarification of that offer is made on without prejudice basis. The offer or failure to respond, uh, doesn't invalidate the offer. It's still a valid part 36 on it fulfills the mandatory requirements and, but it may be taken into account when the court considers the cost implications of acceptance of the part 36 offer. We'll look at the cost implications later on and generally, although that is right, the court can bear in mind if there's been no clarification of the offer. Despite the request, we tend to find that that isn't, doesn't tend to really be a valid consideration as to whether the uh implications of part 36 offers apply or not, but it's worth worth a go. It's a potential that it needs to be a minor to be aware of. And also there's nothing wrong when you made an office seeking any form of clarification. Even if it is effectively a case where there is liability dispute, the clarification could be literally a breakdown between what's awarded in a person, injury claim for the sum of general damages, the injury itself and what's on, um, is offered in relation to special damages. So the loss of earnings and care and elements like that to, to help with the formulation uh as to whether that offer is uh acceptable to the uh offeree in relation to acceptance. Uh that again must be in writing, you can actually use the, the form of N 242 A. That's the form which makes, um, that you complete to make the offer. There's a form on the back that confirms the acceptance ticker box, et cetera. Uh, or it can just be, uh, uh, written acceptance of the part 36 can be accepted at any time without seeking the court's permission unless the trial has started and you do need the court's permission. You need to notify the court once you settle by way of a part 36 because then the case is stayed uh for the whole part of the claim, depending on how the offer was made. Obviously so effectively, if it's an offer on liability, only the matter will just continue in relation to the quantum aspects uh if it's in the totality of the claim, so it's a quantum offer for compensation that's been accepted. Uh You notify the court and then the cases and stayed because no need for the matter to proceed further because settlement in essence has been uh agreed if there are multiple defendants and the claimant wishes to accept a part 36 offer by one of them and they need the court's permission there, multiple parties involved there. Upon acceptance of the part 36 offer, the development is obliged to pay the sum of the claimant within 14 days. And that's one of the benefits to an individual who's accepting the part 36 offer. They know that that payment is going to come within a relatively quick period of time. If that parent doesn't come within 14 days, what happens? Well, quite frankly, what happens is the party accepting the offer will have notified the court of the conclusion of the claim. By way of part 36 payment is not made. They'll ask the court to enter judgment for that agreed sum and then they can proceed to enforcement. But generally, if you're gonna have a little bit of a delay by the time that happens and you get the judgment, the payment will have, will have arrived the parties. Although 14 days is stipulated within part 36 itself, the parties can agree to vary those time. Uh limits. It may be the fact. There is a reason for the delay, elements of jurisdiction where you've got a party who's outside the jurisdiction and paying takes a little bit longer to receive those monies, you can agree a different timescale in relation to amending a part 36 offer. So if a part 36 is varied, so that the terms changed to be more advantageous to the offeree, then the original offer doesn't need to be withdrawn. The revised offer will be treated as a new offer and the previous offer is no longer open for acceptance. If the part 36 is v to be less advantageous than the previous offer, maybe because some uh evidence has come out to something's changed, then the date of the original part 36 remains the same. Of course. And in the course of a claim, you can make a number of part 36 offers. You're not limited just making one. And of course, you can make uh a number of offers on part 36 offers on liability itself or on quantum both elements. So you, you're not beholden to making one only in relation to the cost implications for an acceptance. The claimant is the offer rule and defendant accept the claimant's part 36 offer and the defendant is liable to pay the claimant's costs up to the data service of acceptance and then therefore, no further costs um incurred are able to be claimed as part of the claim. If a party accepts the offer outside of the relevant period, don't forget what we've seen before. There's relevant period, a minimum period of 21 days and then what we're looking at is we'll see later about the implications uh around that. Um But of course, the offer stays there as I said before unless it's withdraw and that offer is always there. So it can be accepted at a period of time outside of that relevant period outside of those 21 days. But if so, in the rules state, the court will decide liability as to the costs unless the, unless the parties have agreed the costs. If the parties cannot agree the liability for costs and the court must, unless it considers it unjust to do so, order that the claimant be awarded costs up to the date on which the relevant period expired and the offeree, do you pay the offer or cost for the period from the date of expiry of the relevant period to the date of acceptance? That's the general default position. So if you've got a defendant who makes a part 36 offer, say, let's say 50,000 pounds to the claimant, the claimant then accepts that part 36 offer six months after the end of the relevant period and it's still on the table. No problem. And the usual default position is that the claimant is able to claim their costs up until the end of that relevant period until 21 days after the offer is uh is made and then any costs incurred from day 22 until the date of settlement. The date they offer is acceptance. The claimant will be liable for the defendant's costs incurred. That's the default position in relation to that costs liability. When you plan to withdraw an offer, that must be done expressly in writing, um, if withdrawn the consequences of part 36 don't apply because it's, it's been redrawn as if the offer uh were never made. It's not, there can be withdrawn at any point after the end of the relevant period. So it's important when you're advising your clients, if a part 36 offer is made, your client's aware of the fact that you've got this 21 day relevant period within which to accept the offer. And if that period ends, then the offer can stay there. And of course, you've got implications of costs in relation to accepting that outside of that 21 day relevant period. But also the other concern for your client is whether our offer is then withdrawn. So it's no longer there for uh acceptance. And then later on, a lower offer is potentially made. Your client has missed the opportunity to accept that offer. As long as your client's aware of the risk there, that, that that offer may be withdrawn, then you've done everything you need to do and your client can make an informed decision in relation to accept or not. What happens when you want to withdraw the offer, but within the relevant periods. So we know of course that uh I saw the relevant periods when the 21 day period has expired back on withdraw it whenever you like what when you want to withdraw it within the relevant period. In essence, what happens is the person making the offer is noticed um that in writing to withdraw the offer. However, uh that notice will not take effect and that offer will not be withdrawn until the end of the relevant period. So they, they've given an indication effectively that the offer uh is going to be withdrawn. They're prevented from doing so within that relevant period, what we then have is if the offeree within that relevant period, irrespective of whether the um other party, the offer or has um service notice to withdraw or not. Um If they accept, um, that offer, that places an obligation back on the offer or you have to apply to the court for permission to withdraw the offer or to change its terms within seven days of the date of the offeree notice of acceptance. So, um if you've made the offer and now you want to withdraw it, maybe for some reason, you've made a mistake or things have changed in that short period and you've made the offer, you give that notice to withdraw and they sort for the, the offeree, then they can either wait, let the relevant period end and then the offer is withdraw. No, no problem or they can try and accept the offer, accept it and then it's for them for the offer or to make this application within seven days for permission to withdraw. And on the application, the court may give mission for the offer to be withdrawn or for its terms to be changed. If satisfied, there's been a change of circumstances since the making the original offer and it's in the interest of justice to give permission. It could be change of circumstances, um could be where maybe something's changed in the evidence. Coincidentally at the point after you've just served your uh your part 36 offer. Generally, when you see a situation when you're trying to withdraw an offer within that relevant period, still, it's because a party has made a mistake. Uh ie they've offered 100,000 pounds um for in settlement of the claim but have forgotten that liability is to be split on a 5050 basis. So the quantum offer should have been 50,000 pounds and not 100,000 pounds. So an error has been made. And then of course, what we have then is the potential for the offeree to take advantage of that error and accept that offer despite the offer, all's intention to withdraw within the relevant period. Ok. So what about um the consequences uh uh of a failure to all the benefits of these part 36 offers? Looking at the offers made from payments perspective. Then of course, the offer made from the defendant's perspective. So where a claim proceeds to trial and the claimant is awarded a sum that is at least as advantageous as their part 36 offer. So that means a sum which is the same or greater than so, if the claimant offers 50,000 pounds and then at trial is awarded 50,000 pounds, that's fine effectively, then they are entitled to the um cost benefits of beating that in essence uh part 36 offer or of course 55 is more than what their their offer was because then they get the, the benefits. So at least as advantageous is the same as or more than their offer. So what does the claimant get uh a plethora of things in all honesty. So, interest on all or part of the damages awarded at an enhanced rate of up to 10% above base rate, that's up to 10% above base rate, not 10%. So there's gets a bit of f um flexibility there for the court to exercise its discretion in relation to what percentage to apply. And that's for some or all of the period from the date of the expiry of the relevant period of the offer until the date of the trial, the date of the judgments and they also get their costs in relation to the same period on the indemnity basis. And we saw in an earlier film in relation to um cost and the difference between indemnity basis and standard basis uh interest on those costs at the enhanced rate of up to again, up to 10% above base rate. Again, that exercise a court's discretion anything from a zero, up to 10% above base rate. On top of that, the claimants also gets what's called penalty damages, which is up to 10% of their award on sums up to 500 keg and up to 10% of the claimants award up to five kh 500 Sorry. Oh, it's 10% of the award that's 500,000 pounds and then um 5% thereafter up to a maximum cap of 75,000 pounds. Um So that's the massive volt, which is great. So you get an uplift there, the clinic's an uplift on their damages as well as part penalty damages, lots of advantages there. Um If the clement has pursued this matter to try and has been successful in relation to their part 36 offer, what about the defendant? Uh Then so if the claimant fails to secure a judgment, that is more advantageous than not, at least advantageous and more advantageous than the defendant's offer, then we have its elements of the, the court's discretion. So that basically means if they fail to get uh an award of uh same as, or they get an award less than so, if it's the defendant who makes an offer of 50,000 pounds and the claim is awarded 50,000 pounds, the defendant is successful on their part 36 often. So what does the defendant get, um, they get their costs on the standard basis from the date, the relevant period expired? That's important to be aware of by the way. So, in relation to the costs, the claimants successful on the part 36 offer, they get cost on the indemnity basis. The reason being of course is because they're entitled to cost on the standard basis. Arguably anyway, as part of the claim. So getting costs on a standard basis doesn't give them anything extra, which is why they have costs on the indemnity basis. The defendants are in action isn't entitled to their costs as of, right. So that's why they get costs on the standard basis and not the indemnity basis. That's an important distinction to be aware of. Um, don't get mixed up if you hear about defendant being uh uh are entitled to costing indemnity basis. Not, no, they're not, not as a result of um success on their part. 36. Often top of that, they get interest on those costs. Um They also get the benefits of the fact that the claimant has to bear their own costs from the date of the expiry of that relevant period. So there's a cost saving there. Don't forget as well as we saw an earlier film in relation to cost as a cap that applies here in relation to Quas. We've got qualified war cost shifting, uh which applied is basically the defendant's entitlement to costs is capped at the level of the claimant's damages. So we saw this before. So if the defendant makes an offer of 5000 pounds and the claimant is awarded 5000 pounds at trial, the benefits of the part 36 offer success. If the defendants cost an an assessor 10,000 pounds, they can't recover that they can only recover the 5000 pounds cos that matches the award that the claimant has received by way of their element of compensation um, all cost awards made by the court and that includes part 36 offers arguably are discretionary. Uh, I say arguably because the discretion is a little less discretionary than the usual, um, uh, cost awards. Uh, the court has discretion to make, um, it's for the court to decide to implement the cost sanctions under part 36 or not. And the reason why I say the discretion is less, so is that the court must do so unless it is unjust. So what we're looking at there is the discretion is a little bit less discretionary, isn't it? So, it's saying the court must give the, um, uh, of sanctions following the, uh, part 36 offer success for either party only and they can only not do so if it's unjust to do so. So in relation to that, the court will consider the conduct of the parties in relation to providing information to enable the offeree to give proper consideration to the author and the information available to the parties at the time the offer was made. This is what we saw earlier. We looked at clarification of the offer if you've asked for clarification within seven days and the offer or has not responded in relation to that, that could be an argument to say that the court, um, shouldn't award the cost implications of that because it'd be unjust to do so. Although that's what the rules say. Um, case law has really come down on this, uh, exercise of this minimal discretion here, quite frankly, part 36 is a part 36 and irrespective of the various, um, reasons and rules behind it, you usually fail with regards to the exercise of this element of discretion. We've had cases where for argument's sake. Uh, at a very early stage, the defendant has made an offer prior to the claimant obtaining any medical evidence whatsoever. So prior to the claimant being able to value uh uh accurately the the claim for compensation because they don't have the medical evidence where the defendant is whacked in a part 36 offer chancing their arm. And it turns out that offer has been a good one. Now, the medical evidence has come out, there's been a case where 23 years down the line. Now all the medical evidence is there. The claimant's looked on the part of 36 R realizes. Yeah, that's, that's reasonable and then accepted that offer out of time and has tried to say it to the court. Um It's unjust that, you know, we shouldn't be able to recover our costs that the defendant gets the benefit of this part 36 offer because they just chance their arm before we got the medical evidence. In essence, the court says tough, that's the benefit of part 36 you know, they chance their arm, they succeeded on that and there's no reason why they shouldn't be awarded the implica cost benefit of um the offer that they made be also aware of other types of offers. So um Calder Bank offers, they follow a case called Calder Bank and Calder Bank. Um They're not, they're offers but not made under part 36. We usually refer to them as being time bomb offers. So what you tend to find they're offers that sort of bang the carrot in front of the party's face, generally the claimants. And so in essence, that here's 50,000 pounds, you've got 14 days. And if you don't accept it, then it's automatically withdrawn. So that's the sort of implication there. So the claimant feels the pressure on the fact that he's 50 K offered. But if it's not accepted, then that vanishes, it's off the table and can't be and won't be back on the table. You see as well, often that defendants will also make Calder bank offers at the same time as a part 36 offer. Again, that's tactical. So what they'll do is they'll say here's a Calder bank offer for 50,000 pounds. It's off the table within 14 days and here's a part 36 offer for 45,000 pounds. So what they defend the claimant will see is right, I've got 45 K, which is five K less than the other offer, but the other offer is five K more, but that disappears. It goes after 14 days and I can't accept it and what will happen? There's a lot of pressure on the on the claimant to actually see this money also vanishing in front of their their eyes. Um The other benefit of quarter bank offers is they can be cost inclusive so you can make an offer which is say 100,000 pounds inclusive of the cost of the action. So then it's for the claimant and their legal representatives to sort out what element is cost. What element is damages in relation to that difficult connect can cause um a risk of conflict between the parties because you have arguably um you know, the less uh the more that the claimant gets, the less that the solicitor will get for their costs and vice versa. H that conflict there. Um And uh B as well, part 36 is um are you don't have them, you can't be costing polls, they, they're separate uh elements in relation to that. And of course, those offers called bank offers are born in mind by the court when considering it uh an award of costs. So its use of the exercise of their discretion, you have consent orders. So these are a way of settling the claim uh formally if there's been some sort of agreement between the parties, whether it be just by telephone, open correspondence, not by part 36. Of course, because when you make a part 36 you settle the case by formally accepting the offer and you notify the court and that's done and dusted, there's nothing more needed. But maybe if it's a Calder bank offer, you want to accept that Calder bank offer, it doesn't have the same effect as exception, a part 36 offer. So to accept the Calder Bank offer and those terms, you need to draw up a consent order to agree the, the terms involved. Be aware of the, the terminology here. Ok. So we've got consent order and we've also got what's called a Tomlin um order. They are different things, but in essence, they are still a consent order. So a Tomlin order is a type of consent order in, in essence, so a consent order itself um is a document which records the uh the terms of settlement. Um It's referred to as a, a consent order. It's a legally binding contract. If you utilize a consent order to settle a claim, what that means is if um the other party doesn't pay in accordance with that consent order, what it means, then it's a breach contract. So then you'd have to issue court proceedings separate action for a breach of contract. The breach of the terms of the contractual agreement, which is the consent order. So you have to issue fresh court proceedings in relation to that. The difference with the Tomlin order, which is a type of consent order is if you draft a Tin Tomlin order and sign a Tomlin order and your opponent doesn't pay in accordance with the terms of the Tomlin Order. You don't need to issue fresh court proceedings. You can apply to enforce that order within the current proceedings. So basic, much easier, simpler and cheaper to do that. So generally, and, and that applications like that can be made with that notice. So generally thinking about you're trying to settle a case, how should you settle it in sent order or to in order, principles say about acting, your can't best interest, interest. It's time in order all the way because if there's a breach of that time in order, the opponent doesn't pay, you're being forced within the current set proceedings. It's quicker and easier if you did it with by a consent order, you'd have to issue separate proceedings to pay another issue fee. Then you've got the element of the defense being due the timelines involved in relation to that a lot of additional costs just because you've agreed to document a consent order as opposed to a time in order, consent orders, you see more commonly, less in relation to settlements of claim. This is more common in relation to where the parties have agreed a a variation in directions. And so you can actually put that consent order in or alternatively, maybe one party has made an application like for example, an interim payment uh order and then the opposing party has then agreed. OK, fine. You made the application we now agree it. So what they'll do is sign a consent order with that agreement to the terms of payment in relation to that as long as along with an element of a cost element to it as well. So what the cost order is agreed to be also, well, uh be aware as well of discontinuance. So this is when you effectively end um your uh your claim that you're bringing. So the claimant can discontinue their claim or even any part of it at any point in the proceedings against one or more defendants. So there's no obligation. Once you've brought your claim, you have to see it through to an end, you can call it quits and end it at any point that you wish to do so. Um However, a claimant must obtain permission of the court if they wish to discontinue all a part of a claim in relation to one where there's been the grant of an interim injunction or whether the party is given an undertaking to the court or the claimant has had received an interim payment in relation to their claim. Or they can only discontinue if the defendant who made the interim payment consents in writing or the court gives permission. Ok. So, uh tell when you actually are, uh there are terms or exceptions in relation to simplifying a notice of discontinuance when the court needs to get involved, an entry payments is quite a common one where of course, you just look again in your opponent's agreement and they can discontinue, irrespective of the fact that interim payment has been made. So, in order to discontinue what you do is you file and serve called, uh, a form called a notice of discontinuance on the, the N 279. And discontinuance against any defendant takes effect on the day when notice of discontinuance is served upon them. If the, um, if they discontinue, the claimant is liable to pay the defendant's costs of the whole part of the action which has been discontinued. That's your obligation and that, so you're gonna have to settle the defendant's costs of the action you've discontinued. And that's unless quos applies. So if qu applies probably one week cost shifting. So it's a personal injury case, then tough, the defendant can't claim its cost. So you've discontinued and then, uh, the case goes away and the defendant has no right to claim their costs from use. The claimant where the claimant discontinues, the defendant may apply to have the notice of discontinuance set aside as where they object. No, you're, you're not discontinued. We're having this case moving forward in order to do so. Uh, they may not make an application under that rule more than 28 days after the date when the notice of discontinuance was served on them. So, what you're looking at there is the defendant has, once they say have the notice of discontinuance, they need to make that application within that 28 day period to set aside that notice of discontinuance. Um, you see it in cases where the defendant wishes to recover that irrespective of the application of the qu rules. You also see where we've got elements of fundamental dishonesty where the defendant wishes to the case to push forward so they can have a finding of fundamental dishonesty so they can then pursue their claim for costs in its totality. So it tends to be a cost, uh, exercise for the defendant when they apply to set aside its notice of discontinuance. Well, let's try a practice question in this area. Then she acts on behalf of the claimants. The claimant was brought a claim for personal injury following a road traffic accident. The claimant sustained a fracture to their shoulder. The claim has been issued and served the given up for the defense admitting a liability. Shortly thereafter, the defendant made a called bank offer of 100,000 pounds which is cost inclusive. You've taken instructions from the claimant and wish to accept the offer. Which of the following best reflects how the claim should be concluded. A the party should file a timely order reflecting the terms agreed. B the party should file a consent order reflecting the terms agreed. C the claimant should file a notice of its continuance. D. The defendant should make a part 36 offer for the same amount which the claimant can then accept the claimant then needs to notify the court of the acceptance. E the claimant will need to make an application to court for permission to accept a call. The bank offer eight is the correct answer there. The parties should file a tom in order reflecting the terms agreed. So we saw earlier when we're looking at concluding a claim acting, your client's best interest and the principle seven A Tom in order is the way to go because in case, uh the terms aren't complied with, you can enforce it within the same proceedings. They finally, uh you'd file a consent order again, the difficulty there is not acting in your client's best interest. It is a possibility not in your client's best interest because if payment is not made in accordance with the consent order, then you have to issue fresh proceedings or to enforce the terms of the same. And that's not in your client's best interest, cost wise or time wise, you should have filed a notice of discontinuance. Um Not cos that just basically means that the claim ends. So that doesn't reflect the uh the terms of settlement at all. Um What about making a part 36 offer at the same amount? You can't do that because we've seen the quarter bank offer is cost inclusive. So the part 36 offers, you can't make them cost inclusive. So that would result in a different settlement to be agreed. And a uh is incorrect because you don't need the court's permission in order to accept the called bank offer, I just need to file the uh a to, in order to reflect the, uh, the agreement in relation to the uh, the terms of settlement. Thank you very much.

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Part 18 - Webinar

00:39:59

Hello, my name's Darren Hackley Green. This is film 18 on the dispute resolution sqe um course, uh this film deals with the nature of applications. So this film deals with a general applications and, and the process involved in relation to that. There's a separate film which he is following uh which deals with specific applications that deals with the nature of fuel making application to set, to sort you for judgments effectively the ground you have to meet and the various different applications that um are uh available. This film will just deal with actually sort of a generic process in relation to uh applications because any application starts exactly the same way. Um But then later on, obviously, there are specific considerations determined, determined upon the nature of the application that you are are making. So applications generally um interim applications are an application to court during the course of litigation. Uh and ones that require a judicial decision, I mentioned that they during the course of litigation, usually there is one type of application, we there's one specific type of application which is a preaction disclosure application which is uh an application made prior to litigation you can also have applications for injunctions which occur prior and to issue of proceedings as well. But generally speaking, applications tend to take um place during the course of litigation and what litigation has been started. Applications are generally a procedural um step in the, in the action. And as I said, just earlier, specific regard has to be had to specific parts of the CPR determined by what application you're making. So if you're making an application for an interim payment, which follows CPR 25 there are certain grounds and steps you have to uh meet and satisfy in order to be successful in relation to that same free for making an application for relief from sanctions and 3.9 and lots of different grants you have to, to meet there. But we'll look at those um specifically when we look at specific applications, this is the sort of general process you go through with regards to any application and how it starts. So interim applications generally can be used for a variety of um reasons and purposes. They can rectify a procedural issue. Um apply for an interim remedy, interim payments I mentioned um just uh progress a case to trial more quickly, um preserve evidence. It's like an injunction, uh search orders. And so we, we look at those specifically in the next film. Uh I can exert pressure upon your opponents system as long as they can be viewed as a tactical approach. In relation to uh litigation be mindful as well. That terminology changes and here in relation to applications as well. So if you're making the application, you're the applicant and if you're the party to the application, then you're the respondents and that changes because although we have claimant and defendant, claimant bringing a claim, defendant defending that action. When it comes to applications, it can be any um, party who makes the application, the defendant can make the application um that just makes them the applicant. It basically uh helps the court understand whose duty it is to prove the nature of the application being made. When considering whether to grant an application judge will always have in mind the overriding objective in the CPR one. So is making or granting the application just fair proportionate as to cost and value. Does it deal with the case expeditiously? Is it in compliance with court rules procedures and practice directions? So CPR one, the over and overriding objective comes into place whenever judicial uh decision or judicial consideration uh is made, applications will be heard um either before a master or a judge, depending on whether the uh case is heard. Issue applications should be made as soon as it becomes apparent or necessary. That's a general uh requirement for the rules. Although what you'll see are part of the um specific applications. Timing is crucial in relation to that and you need to explain yourself in relation to where the application has been made in a timely manner determined by uh whether the, which application it is that you're, you're making. But we'll see that when we look at specific applications as well, it should be heard as any hearing already listed. That's an important um, one and that's obviously in relation to the, the court managing or you helping the court manage times best it can. So for argument's sake, if you've got a claim listed for AC C MC, a cost and case management hearing or conference, and um you wish to make an application for uh an interim payment for your client following a, a personal injury claim. Um Then what you do is you make the application for the inter um payments, but you have that application listed at the same time as that CC MC. So when the CC MC occurs, it's not just consideration of the management of the case and the budgeting exercise which is undertaken. It's also to deal with your application because if you didn't do that, what would happen is if your application were on notice. So requiring a hearing just gonna end up with an extra hearing date at a later stage when that's just gonna duplicate court time in a delay matters as well because then it would be easier to have the matter heard at a sooner time because the hearing uh is already listed for the CC MC. Uh rather than the time after that and it means all matters are before uh the court at the, at the same time. So it seems imminently sensible that you utilize that hearing to your advantage, that could easily compart of a multi choice question for the sqe as to, you know, the nature of when you make an application, if you know there's a, a hearing coming up, uh and how you deal with that. Uh and obviously the application you make has to be heard in the court where the matter is proceeding. So the court is dealing with the claim, you know, to make an application, you'll need uh form N 244, which is the application notice. You don't uh need to know the specific forms involved in relation to dispute resolution. They're all different or N numbers and obviously a name after them uh as well. Um But sometimes I think it's worthwhile understanding the content of those forms, certainly with your directions, questionnaire, your N 181 and your listing questionnaire, your M 170 because you could easily have a question in the sqe which is not about you don't get to complete uh a form of sort of drafting exercise you're gonna get in the exam, but it may be uh a question and knowledge as to sort of the questions that are asked in that form and how to respond to those or maybe information that you need to get from your client's preparatory to completing the form in question, I'll show you a form uh n 244 shortly, um along with the application, you're also going to need a draft order. So the draft order is basically what you're asking for. So, uh if it is uh an application for an interim payments, uh the claimant, the defendant do pay the claimant the sum of 5000 pounds by way of a general interim payments within 14 days of the date of this order, something like that. So literally, you're setting out for the court and your opponent exactly what order you want the, the court to make. Also, you need to be aware that court fees are payable and you make an application, you don't need to know the specific fee. And the reason for that cos court fees change. Uh, there's an ex 50 which determines the nature of what the court fees are and they change recently, I think in May they, uh, change, may 2024. Um, and they're likely to change as matters progress as well. What you do need to be aware of, uh, which we'll cover shortly is there are two ways to make an application. You make an application either on notice, which basically requires a hearing or an application without notice, which doesn't require a hearing at the fees difference. So it's more expensive to make an application on notice because court judicial time is, is required uh, as opposed to without notice, you just need to be aware. The difference in the fees will look shortly as well as to when it is appropriate to make an application on notice and when uh appropriate to make it without notice. So just pausing there, I just wanted to um, share my screen and show you what an application notice actually, um, looks like. Mm, so as I said before, you don't need um to complete an application notice as part of sqe anything like that. I think it's good for you to be aware of the form and actually to have a look at the forms because they may help you visualize a sort of information that's required. And as part of the multiple choice question, it may come up in relation to expectations of, you know, what parts you need to be to be completing and what you need to be. Um But to be aware of when you're making an application, so look in the form in general, the, the obvious bits in relation to the, the name of the court and the um the the claim number, um the fee account information to help fees. We looked at the X 16 and uh fee emissions when we looked at issuing court proceedings. But again, that's the same detail there, parties names obviously and the the date. Um what is your name? If you're a legal representative, the name of your firm obviously, and are you a obviously a claimant or alternatively a legal representative. Uh And if you're a legal representative, which is likely to be the case when you're looking at a form you're completing, uh who do you represent? And of course, then the claimant of the defendants box three, what order you're asking the court to make and why? That's only very breached by the way because, um, you, you haven't got much space there to complete, to be perfectly frank with you. So it's a summary um if I use that same example of an interim payment, so that the defendant will be making interim payments of X. Um why becau and, and the reason being because the, the claimant is suffering financially not having been able to work following a, a personal injury. Something along those lines, a very brief summary of the nature of the application. Have you touched a draft uh of the order you're applying for? Invariably you have to see that says, yes. Um I'm not sure I've ever seen anyone, you know why they would actually justify that? Because why would you not draft the order that you're seeking? Because that's the nature of the application you're making. Importantly part five, how do you want to have this application dealt with? So at a hearing without a hearing, this is the on notice and the without notice provisions, excuse me at a remote hearing as well. So that's like either a telephone hearing or a CV V cloud video platform um hearing. And of course, the purpose of at a remote hearing is it keeps costs to a minimum. So for argument's sake, if you've got a claim which is proceeding, you know, for, I don't know Middlesborough um County court, but you have a barrister, you've restricted in Birmingham because maybe it's because of the nature of the case requires that specialism. It's something you've worked with before. If you put at a hearing, that means your barrister is traveling all the way to Middlesbrough and charging you for the pleasure of doing. So, um at a remote hearing, of course, basically means the the barrister, if a remote hearing is permitted, is able to do that um hearing either by telephone or by some sort of play video platform video conferencing. So do you think about in relation to these um os elements and cost implications of that? How long do you think the hearing will last as an estimate in relation to timelines? And the reason for that, of course is so the court can have a look at if you're asking for a hearing and you're stating it's gonna be an hour, the court can fit it in the diary accordingly. As opposed to if it's gonna take 20 minutes, they can slot it in maybe at an earlier earlier stage is a time estimate agreed by all other parties. So, in the nature of the application you're making, whether you've agreed with your opponent, the nature of the application invariably it'd be a no. Um because you make the application without actually giving their involvement in the nature of the timescales involved. Alternatively, you may have done. So you may have actually gone to them about these interim payments and they have said like, no, you're not having an interim payment. So, you know, it has to be an initially determined by the court and you agree with them. I look in light of the issues an hour enough time for you to make your submissions for us to make our submissions and the parties can agree to them. Give any details of any fixed trial date or periods. I think it's in the court listing at the moment. What level of judge your hearing needs? Um invariably was a county court and district judge would be fine who should be served with this application. That depends on the nature. Of course, whether you're making it without um a hearing. If you make it without a hearing, the idea is no one is served. It's just a matter of you and the court and your representations to the court. We'll look at this uh a bit more detail in a moment. Please see the address for service. Um Other than the details of the claim to defendant of any party named in uh in part nine. So if you just are making an application on notice at a hearing, um and it just involves the defendant. You don't need to be complete the details there and goes to part 10, what information would be relying on in support of your application? Invariably it would be uh, the attached witness statements, which would be a witness statement in support of the application. Alternatively, you can actually tick the box here, the evidence set out in the box below and then in that box there free text box there, then you can complete uh the nature of the reason why the you are making the application and how you have met the relevant parts of the civil procedurals with regards to that application. So we saw when we talked about interim payments, the relevant parts of 25.7 and the supporting practice reaction of the paragraph 2.1 and what the requirements are invariably, this won't be enough um space to complete uh the application properly. Uh In practice, I tick the the attached witness statement box and do a separate witness statement and support. I never complete this box. It's a matter of practice really what you feel uh is appropriate in any given case. Um a vulnerability question. Again, we've seen this, we talked about this in a, in a previous film, but the need to consider the vulnerability of a party and the impact upon any uh ju judicial decision. Um at every stage, it's important here in relation to the nature of, of um the application do you believe, uh, you or a witness who will give evidence on your behalf are vulnerable in any way which a court needs to consider. Then yes, he put down the details there. We've talked about vulnerability in a previous film and no, if certainly just, there's no evidence of vulnerability and it's concluded with a, uh, a statement of truth, either I believe, uh, or the applicant believes. And I'm authorized to sign that on behalf of the um applicant, we've looked at statements of truth in a, in a previous film as well. And the appropriate bits of application applications, uh applicants lead represented of the litigation friend at the bottom there. And the usual bits about dates, names, firms, details, et cetera, et cetera will be completed there as standard. OK? So that's the application notice, as I say, I think it's worthwhile. You um been aware of the application notice certain forms. When we go through these films, I will say just take a look at the end form. Um It's useful to be aware of the content of it. Uh So not for drafting purposes, just for example, question that may look around uh the what we need to uh discuss with your client ahead of making the application. Uh A perfect example of that in relation to application is you need to discuss vulnerability potentially or consider vulnerability with your client prior to the application being made. So an application can be either on notice or without notice, we've looked at this. So if on notice, then a copy of the application papers must start at court for every party to the action including the court thought process. There. Of course, is, uh court gets the papers. Um, if it's claimant defendant and the court and it's three copies, the court will then list it for a hearing and send one copy those papers off to the defendants in return, want to use the claimants and will keep one copy of themselves the court uh as we've seen with issuing court proceedings, um won't photocopy it if you haven't sent enough copies if it's on notice and you've sent only two copies of the uh of the application. They just won't do anything with it. They just return it to you and say, you know, you need the appropriate copies. If uh importantly, if there's a time limit for making an application, it's treaties having been made on the day that the court receives it and the fee as such deemed dates of service via the postal rules will apply just taking a pause there in relation to that and the importance of being aware of how that works. So to make an application, of course, you need to file the the application notice in 244 and also pay the requisite um fee as well like you would do with a, a claim form for effectively the purpose of the limitation. The court has to receive the claim form and also the fee before the limitation uh date expires with this one application is considered having been made on the day the court receives it and also the fee looking at the Dean days of service, of course, and how they were. So if you want to make an application for an extension of time, say to file witness evidence, so the other direction um that witness evidence needs to be filed by Wednesday. So, and, and then um you to get the extension of time, of course, that application needs to be filed at court ahead of the date for compliance ahead of that Wednesday. If of course, it's received after that date, you can't get an ex uh extension retrospectively unless the, the rules of the court order permits you to do so. So therefore, if you've passed the deadline, then it's not an application for an extension. It's an application for relief from sanctions because a sanction would apply because you haven't filed your witness statements on time. So you've got this stage Wednesday being the day that uh witness statements are due to be filed by. You want to make an application for an extension of time to that thinking about the fact that the court needs to receive the application and the fee. And of course, we're looking at Postal rules there for something other than a claim form second business day. If you send it on the Monday or that's ok. Tuesday, Wednesday, it's received, you're in time if it's the Tuesday and you post it, of course, Wednesday, second busiest day, Thursday, you're out of time. So therefore the application is no longer one for an extension of time. It's one for relief from sanctions. Just be aware of that and the need to think about how that works and when you make um the application and, and getting that timing right, also looking at timing. So a copy of the application notice must be served as soon as practicable after it's filed at least three days before the court is to deal with the application unless a different time. And it is stated in the raw practice direction of court order. If a copy of the application notice is to be served by the court, the applicant must when they file the application notice, file a copy of any supporting written evidence case, that's you're expecting the court to actually serve that when they listed for a hearing, you know, all this uh application information, the statement in support of the draft order, et cetera, et cetera has to be filed in court with the application notice. When a copy of an application notice is served um by the court, the application must, when they file the application file a sorry when a copy of the application notice is served, it must be accompanied by a copy of any supporting written evidence said about this and a copy of the draft order. The draft order is really important in relation to stating exactly what um you want the court to order. Uh every application should be made as soon as it appears necessary or desirable to make it. Now, that's the general application of timings. In relation to applications, we look specifically in relation to each different type of application as to how uh or when timings are important in relation to that specific application where respondent to the other party to the application, which is to rely on evidence, which is not yet, I mean served, they should serve it as soon as possible and accord it to any directions of the court. So that's when the respondent has the right. Of course, applicant makes the application safe for an interim payments which we, we talked about earlier. The respondent may have something to say in relation to that, maybe say, well, no, um there's a dispute on liability. Therefore, we don't think liable for anything. Therefore, we shouldn't be making uh an interim payments at this stage. Uh or alternatively, the claimant hasn't satisfied the relevant criteria within part um 25. And therefore, that's why we dispute the necessity of an interim payments. So the respondent will also have the right to find evidence for the court to consider uh when the application is heard, any evidence uh already filed with the court need not be refilled. Um But though I in certain circumstances, it's a benefit for you to do so. So for argument's sake, if you have a, a complex serious injury case, maybe it's someone who's tetraplegic. Uh, and you've got to date 18 medical reports, maybe or two years into litigation. And with the court file, what will happen is you file documents, he's put in the file and it will just effectively um be in a reverse chronological order. So it's on the file. The earliest document is on the bottom and then each new, uh, document file, of course, he's put on top of that and then once that's complete, then there's another file started. And if maybe you're, uh, two years into litigation and you wish to make an application for an interim payments, uh, you want just to look at a specific medical report, it would be a little bit time consuming to expect the judge to hunt through the court file to find the one report you want that judge to look at in a, in order, the better thing to do is find favor with the judge exhibit that, um, to your witness statement. It says a judge going hunting around for it. Uh, and it's easy enough for the judge to then just look at that, um, medical report. If it's exhibited your witness statements as part of your application rather than hunting through the file, it's just a tactical or, uh, makes perfect sense. Makes the job easier for the, for the judge in question along um with your application as well. What we looked at was your N 244 application notice, your draft order, your witness evidence in support of that. Don't forget the fee you have to pay, but also you got to think about costs as well. So we look at this n 260 statement of cost. Again, you don't need to know um the uh the N number but a statement of costs that's affect your cost form which you complete where you wish to claim your costs of the um of the application. We'll look at that in a specific cost orders in, in a moment. Um Do be aware though that with your N 260 that um form needs to be filed, of course, 24 hours before the application hearings the rule. So you don't need to file the uh N 260 along with the application itself because the, the thought process there is might be further costs incurred. Uh As a result of that application, further evidence is obtained further discussion with your opponent priority application. You want to make sure you claim for all of those costs. If you're seeking the costs order at the, at the hearing 24 hours before the hearing is when you need to file that statement of costs. If an application is agreed, then the court may draw up an order. So for example, if you've made an application for an interim payment uh that the opponent's respondents has briefly refused. But then now they've changed their mind then just be, they've changed their mind doesn't mean to say they have to go to a hearing. The simple fact is you can draw up an order, consent order which agrees the terms of the, of the application. Your opponent has the right to reconsider their, their position and avoids a cost obviously attending a hearing as well. Be aware though, of course, there are certain applications or a certain application which your opponent cannot agree to. We see this with regards to specific applications in the next film. But relief from sanctions is that so relief from sanctions is when you're in breach of a court order and a sanction applies, what you say to the court is really sorry. We breached the court order. A sanction applies. But I'd like relief from that sanction ie that the sanction doesn't apply to me. And you've seen that we talked about that witness statement being due on the Wednesday. And if you, that your application is received for extension of time on the, on the Thursday, you're out of time. Uh A sanction applies when you don't file witness evidence in time. So you can't give, um you can't call that witness um to give oral evidence at trial. So therefore, sanction applies. You apply for relief and sanctions, relief and sanctions is something between you and the court the party in breach of the order and the court, it's not for your opponent. So your opponent can say that they don't oppose the nature of the application for relief from sanctions, but they cannot agree to it. It's outside of their powers. Uh If we look at without notice applications and so if an application is made without notice, then the court may simply agree the terms of the, of the order that's made order, then will be sent to the respondents. Uh With the usual terms being the party's right to set aside or vary that order within a specified time limit. That period is usually tw uh usually seven days that's important there. Ok. So if you make an application without notice, so and without notice means your opponent has no involvement in the process, you make an application, you file it at court, the court considers it. And uh if agrees drafts an order, um which is then sent to your opponent, that's the order they need to comply with full stop your opponents, they object to that. Um, on whatever grounds may decide to either vary it or revoke it, revoking. It basically means it just the order disappears and uh into the ether, it doesn't exist at all or in terms you may vary it. So your opponent may agree the terms of the order itself, but not the cost order, right? So they want to vary the cost order, element of it the obligation then falls on the respondents. And to make an application to do that within seven days, have to do that within seven days. Just be aware, we see um film uh film later on in relation to appeal. Um this is different. So appeal is when you have a hearing. Um so a hearing on notice and you don't uh agree with the decision reached, this is different, this is a without notice. Um, order that's been granted. So therefore, it's a separate process. It isn't appeal, just be aware of that. It's a separate application in a certain amount of time, seven days to set aside or vary it. So the obligation is to put on a respondent if they don't do that, of course, they have to then comply with that order. Alternatively, of course, if they decide to make an application to varies outside of those seven days, they'll also need relief from sanctions because they've, they've missed that time deadline as well if the application is on notice, um then the court will list a hearing and send a notice of the hearing date and a copy of the application to the respondents as well. Um The court will sometimes set out uh an order for additional evidence which is required. So the court may want case summaries or skeleton arguments filed in advance of the, of the hearings that tends to be uh unusual. Uh in general terms, you normally just get it listed and then um you know, fill out for the hearing itself. So in relation to prior to making an application, pre application activity is really, really important. So if you're thinking about an application and making an application, you have to show to the court that you haven't just fired straight into the application itself. You've given your opponent an opportunity to consider uh the nature of the application to avoid you having to do so. So I keep talking about interim payment applications very, very common one. So you don't just make an application for an interim payment that for a sum of money and to help the claimant manage their finances at this stage because they've not been able to work following a personal injury claim or, or an accident at work. Whatever it may be, you go to your opponent and say, look, could we have an interim payment, please? In the sum of 5000 pounds, you give them an opportunity to take instructions and respond to you. If they don't respond, then you give them a chaser, you telephone or a letter that's expected. Um So that, and that comes down to a conduct issue really. And of course, if your opponent either refuses or they ignore um the original request and the chasers, then of course, you've got no choice. You have to go and make an application to the court to determine that issue. What you do then is in relation to the fact that you've requested the interim payment and you've chased, you could utilize that to support any application or request for, uh, an adverse cost or an, uh, a cost or against your opponent. Then to pay your costs of that application. Generally, that's the general rule in relation to what you're expected to do ahead of making an application. Of course, there could be certain circumstances when you don't comply with that obvious ones really from sanctions. That's a matter between you and the court. And we'll see when we look at specific applications, that timing is so so important. So therefore, you don't wait to see whether your opponent will oppose or not. Just move on and get on with that application. The same way for things like injunctions and injunctions are generally time sensitive. You make an application. So you wouldn't tend to um go to your opponent and give them time to respond to an injunction and generally injunctions are put in place because your opponent is not doing something, but you want to do something. So generally, wouldn't tend to put the wrong notice in relation to making an application for an injunction in any event, always bear in mind, conduct elements of an application that's really, really important. This is when ethics and conduct can be as you know, is pervasive throughout um all, all of the elements of fok one and two. But specifically, dispute resolution has a large element of ethics and conduct that can apply. So we look at the code of conduct 2023 and you're thinking about making an application, you think about the contents of that application, some rules to be aware of. Yeah, 1.2 you don't abuse your position by taking unfair advantage of others. So nurture the application you're making just be cautious of that. Certainly, when you're dealing with a litigant in person, you have to be careful about the fact that you're not taking him for advantage of your legal knowledge ahead of someone who has no legal knowledge, the nature of the application you're making rule one. But before you don't mislead or attempt to mislead the court or others, either by your own acts or omissions are allowing or being complicit in the acts of omissions or uh um of others including your at your client. Very important. Rule 2.4 you only make assertions or put forward statements, representations or submissions to the court or others, which are properly arguable. Ie if your application has no grounds or effectively is doomed to fade. Yeah, do not make it cos you could breach uh the sr a code of conduct by doing so, it has to be properly arguable. Don't waste the court's time in essence. And 2.7 you draw the court's attention to relevant cases and statutory provisions or procedural regularities of which you are aware and which are likely to have mere material effect on the outcome of the proceedings really important, making an application. If for argument's sake, you have, you're aware of two contrasting cases, maybe uh they are both binding authority but they may, they has a subtle difference there in relation to the element of stare decisis. So what you do is you don't just pick your favorite case that supports your application and say, look, this is the the case we're relying upon. That's what you should grant our order. It's a skill of the law, in essence that you have a look at both of these cases. You put both of those cases before the, the um the court and the judge, what you say is effectively that the uh decision in relation to your application, a specific case should be made on case a which favors you because that's more similar to the circumstances in relation to the one that you're dealing with. And you can distance yourself from the second decision uh which is not in your f uh your favor because of the circumstances. The facts are different and not uh all just to the um analogous to the, the, the case that you're bringing in really. So that's the skill of being their lawyer, just be aware of that. Uh So it's really, really important. It also means you don't take on fair advantage of your opponent if they're doing something wrong or making the wrong representations to court, just be mindful of that witness opening exhibits. You contain a course you you draft will contain justification for the nature of the order that you're seeking in relation to cost orders. Always there. These in mind in relation to following an application, the four most common types of costs order you're gonna be looking at following an application are either costs in the case, no order as to costs bla you pay the defendant's costs or the defendant to pay the claimant's costs. This was e this could easily form part of the, a multiple choice question for sqe thinking about the nature of an application that's been made. And what cost order is appro following that application in relation to that? Um, no order as to costs. That basically means the party making the application doesn't recover the cost of the application. So the, um, the most common um, circumstance for that is of course relief and sanctions. You've made an error, you haven't filed your witness statements in time. You're having to make an application in relation to that. It's not appropriate that the, um, the costs that make an application are borne by your opponent or form part of the case because it's your error to generally be in no orders to costs are basically the application, you're making all those costs involved because of your error. Just guarantee you, you can't recover for those cost. In the case is sort of the general rule. You tend to see in relation to costs. So what that basically means is all the costs involved in the application get tied up as part of the case. So ultimately, uh if you're the claimant, you've made the application results and costs in the case, uh of that application, at conclusion, if you're successful, then the cost out application from part of the cost of the overall action all gets bundled in together as part of the claim. He tends to see costs in the case in relation to following hearings like AC C MC A cost in case management hearing because that's just nature as part of the processes in relation to which the, the court goes through with the cost of the budgeting exercise and so on. So all those costs should be formed part of the overall claim itself. The other costs which we refer to as adverse costs, look at elements of fault. So claimant you pay the defendant's costs, defendant, you pay the claimant's costs again. The same rules apply in relation to applications the winner. So the loser pays the winner's costs. So if the um applicant has um failed in their application, then the respondent will be entitled to their costs in defending that application or opposing that application. Same way as if the applicant has been successful and the opponent's respondent has opposed that application, then the applicant should be entitled to their costs of that application as well. That look at those cost orders and bearing that in mind, respondent would always have to consider, do we consent his application? So if you got argument's sake, we again its interim payment application. If the interim payment application is made and looking at it, the defendant respondent thinks well, they're likely to, to be successful in relation to that. Why would they continue to oppose it if they're going to oppose it or it's going to end up happening? is an adverse cost or they, they're gonna have to pay the cost of that application, which can be several 1000 pounds depending on the nature of the evidence which needs to be produced to support and uh the application that's been made. So respondent may want to take a UK. Right. Let's just agree the application now keep costs with minimum. Alternatively, we will agree the application but we'll agree costs in the case, it all gets wrapped up as part of the case rather than a separate costs order against us. And generally, of course, if you're pursuing an adverse cost or you need to show documentary evidence in support of that. And that's why it's very important in relation to your pre application conduct. So in your chasers to your opponent, we asked for payment c in 14 days made a telephone call here as an attendance, they've sent a letter, sent an email chasing a response, heard nothing. These are all helpful to sort of go away to support an application for an adverse cost, we are against the uh against the losing party. And just reflecting, of course, um back on applications and costs you'll see in the film I did in relation to cost the elements of how qu works in relation to that. I won't repeat that here because I dealt with that uh in sufficient detail when I looked at costs. But don't forget in relation to if it is potentially the respondent, who's the defendant and there's an advert of costs order uh in their favor, thinking about how that works when it interrelates with costs. Ie you wait until conclusion before that gets dealt with. Right. Let's have a look at a, a practice question in this area then so you up for a client who's the, the claimant or the respondent in opposing an application to set aside a default judgment, the defendants, the applicant has made an application to court to set aside default judgments and the matter proceeds to a hearing as you are opposing the application to set aside that judgment. During the course of the hearing, the sister acting for the defendant, the applicant mistakenly states that in order to set aside the default judgments, they have to have a real prospect of successfully defending the claim. And there must be some other good reason that's actually wrong because he only has to meet one of those grounds, not both of them. So they've said, and as opposed to all uh you know that the defendants of the applicant's submission is wrong, but it assists your client's case significantly if the application is refused by the court, cos it means the default judgment will stand there. Uh You informed the court that the applicant has not met both of these grounds and the application therefore fails. Have you acted in accordance with the sr A code of conduct? A uh note, you deliberately misled the defendant's stroke applicant by failing to identify their incorrect reading the procedural rules. B note you have deliberately misled the court by failing to identify the defendant's applicant's incorrect reading of the procedural rules. C note, although you have not deliberately misled the court by failing to correct the defendant's applicant's mistake, you have been complicit in misleading the court. D yes, you have acted in your client's best interest by simply taking advantage of a mistake made by the applicants. E yes. Whilst the court has been misled, you are not directly responsible for this answer. B saying no, you have deliberately misled the court by failing to identify the defendant. Applicant's incorrect reading of the procedural rules. As you know, the applicant uh is saying that you need to meet both of these grounds or to success these tests aside, default judgment. That's not right. The rule states one or the other just need to meet one of those grounds under paragraph 2.7 as this must draw to the court's attention any procedural irregularities of which they're aware of, which you are aware of this swamp and which may have a material effect on the outcome of the proceedings. It would do, of course, if they don't need to meet both of those grounds. So, um as you are in this case, you know, the applicant has accidentally misled the court on the wording of the test by failing to correct that mistake. You've deliberately misled the court yourself and actually you took it one step further. If you look at the question here, um you tell the court they haven't met both of those grounds. Therefore, the applicant, the application therefore fails. So that's why B is the correct answer. So what about the other answer? So a no, you deliberately misled the defendant or the A uh applicants. That's wrong. Um Because it's the court that you have deliberately misled not the uh the applicants c uh Although you have not deliberately misled the court or that's wrong because you have deliberately misled the court in relation to your conduct involved. Um B yes, you're acting in your client's best interest are simply taking advantage of a mistake made by the applicants. If you see the word taking advantage in any sort of answer in sqe that's the, that's got to be the wrong answer. OK? You're not allowed to take advantage of our opponents in that if it is in the, the client's best interest that the application fails that. That is right. But you can't do so by breaching other parts of the sr a code of conduct. Yes. Well, the court has, has been misled. You were not directly responsible for that, but that's incorrect. Cos you were because, uh although arguably it's the applicant's responsibility who made the application, you have actually made representations to the court um, that both grants haven't been met, which effectively is part of your responsibility or direct responsibility. Just be mindful about that. So even though it is your opponent's mistake, uh you still need to draw to the court's attention. The fact there's been this procedural regularity and obligation there in interest of fairness. Thank you very much.

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Part 19 - Webinar

00:51:26

Hello, my name is Darren Hackley Green. Uh This is film 19 in the dispute resolution series of films for SQE uh This film deals with the topic of specific uh applications. So we've already had the pre uh previous film from 18 that with applications generally show it to the general process in relation to how to make an application look at the resulting cost. Orders from that the form you need to complete the M 24 for application notice on what needs to accompany this, that form. Uh This video um film will look at each different type of application and the requirements behind each and every one of those. So the S3 assessment criteria actually specifies certain number of uh applications you need to be aware of they listed there. So setting aside judgment uh really from sanctions specific disclosure, all the different ones, I'm gonna go through each of these um in terms. So what I've done, I've compartmentalized all of the different types of applications is one film. Whereas as you can see um the H SPS assessment criteria, it sets out different applications during each of the different phases. For apple disclosure refers to this specific disclosure and uh the action disclosure, I've dealt with that within uh this film and not within the disclosure film. Uh and same elements of uh responding to a claim, setting aside judgments, default judgments and things like that. So it's easier to deal with all different types of specific application within one film. So the tops application we're going to deal with in turn arm set out there. So first one, we've got to talk about relief from sanctions. The idea here is that uh you haven't done something in accordance generally with a court direction and as a result of you not doing that thing, then you have uh this sanction which applies. So you haven't served expert evidence in accordance with uh a court direction. You don't have permission to rely up on that expert's report. You haven't served a witness statement in accordance with a court direction. You can't um, call that witness to give oral evidence. You um fail to file your budget, your cost budget uh in time. Therefore, your uh future fees are limited to court fees only lots of different sanctions depend on the nature of what you fail to comply with. The idea behind relief and sanctions is you say to the court and neither that yeah, sorry, we've um passed this uh direction or whatever it may be. There is a sanction which applies because of that failure. However, we would like relief from that sanction. We'd like that sanction not to apply for various uh reasons for that. You have to make the application as soon as practicable and it has to be supported by evidence. Um Court will take a robust and intolerant approach to any failure to comply with a court order. Um be aware as well that non compliance with a court order is technically contempt of court. But that generally speaking, no one the court won't take issue uh in relation to that because of course contempt in court of court can result in committal proceedings because or complaint to the sr A um that's not really gonna happen because obviously people are aware that occasionally you have directions that slip, you fail to di something correct in the, the, the, you know, the sanction applies. The only time that it can be a bit of an issue is where you have literally uh a disregard for the court direction. So you ignore various court directions you've done so intentionally for whatever reason then that there may be an issue taken in relation to uh contempt of court. So what are the rules in relation to this? We know we need to make an application for relief from sanctions. Um I think I said in a previous film as well, the thing to bear in mind as well in relation to this application, it's a matter between you and the court. So your opponent can't agree that you get relief from sanctions. They can actually stipulate effectively that they don't oppose, um, the application you're making for relief from sanctions. That's fine. Um, but they can't agree to it. It's a matter between you and the, uh, and the court, there are criteria you have to meet uh, in order to be given permission for relief from sanctions. They called the Denton criteria. Cos they, they follow the case called Denton. You probably don't need to know the, the case itself, but you need to know what those criteria are. So those um things you need to consider and give evidence as to are the considering the seriousness and significance of the breach. So you're looking at is maybe you failed to file a witness statement in time, you complied with that um direction a couple of days and after the time had passed. Uh and so effectively, you're not looking at long periods of time here, why the breach occurred and consider why the breach occurred. We're looking at as a reasonable explanation there. So just be mindful that that sits well in relation to ethics. So for example, why the breach occurred are, are just too busy. You've got too many clients, et cetera, et cetera. That's a bit of an issue there, isn't it? Cos of course, as you know, from an ethical approach that if you're too busy, you don't take any more clients, you only uh take on enough work to manage those clients effectively and act in those clients best interests, reason, explanations around the fact that you've failed to diaries it properly or there's some other event that occur, that means you missed it accidentally. Something along those lines, you need to consider the overrun objective, which it's fair important just to allow um, uh the commission for relief from sanctions. And also the court will bear in mind the promptness of the application. It's very important that once you realize you're in breach, you make the application for release as soon as possible. Ok. So in essence, the, the time, by the way you made the application could form part of the consideration whether you get relief from sanctions. You've taken too long. The court may say no, you know, um the idea is you make this application as soon as practicable, that's important. Um And you haven't done so, so therefore you're not granted relief from sanctions. Denton also comes an additional warning for your, your opponents in relation to whether they oppose or not the request for the application for relief from sanctions. In essence, you oppose an application unlike that at your peril because a court may actually as the case of Denton um give an adverse cost order as against the party opposing um the application for relief from sanctions because what they did was unreasonable. Ok. So if you have a situation where your opponent is making an application for relief from sanctions, maybe they've missed the date of service of expert evidence by one day, but then complied with it. Don't take issue cos you're not gonna get anywhere in relation to that, they're going to get relief from sanctions for like a minor breach of um the directions. Um So that's important to um to, to bear in mind as well. It so also bear in mind in relation to extensions, extensions are important. So if you have a deadline approach in relation to court directions, generally, the parties can agree an extension of those directions for up to 28 days. The idea is don't wait until the um the date has passed and then try to get an extension cos that may not work. Although what we are seeing um quite often nowadays is court directions which specify the parties can agree a 28 day extension either prospectively or retrospectively. The, well, the reason why we're seeing that is because the courts are getting fed up with actually the uh judicial time being taken up with relief and sanctions cos the parties missed the date for service of witness evidence by one day and then making this application by giving uh setting an order down that the parties can agree. It retrospectively that basically means you pass the date and rather than a relief from sanctions, you go to your opponent and say, look, we agree for an extension um because obviously it's the date in essence, and it avoids the need for this relief from sanctions application. If you don't have the ability to agree retrospectively, then you need to uh agree that extension prior to that date passing. Because once that date passes the date for, let's say, following your witness statement, for example, you can't then agree an extension cos the date's passed and then all you're left with then is the, the relief and sanctions um application and that's um important. Be able to manage your, your, of course, your diary appropriately. And if you're the party who is being asked for uh an agreement to an extension, bear in mind whether that's reasonable or not, you can agree an extension as long as it doesn't put uh risk a hearing date. Um And just think about the fact that if you refuse, what does that mean? Well, if you refuse, then the other party may make an application for that extension and they may say to the court, well, the reason why we're making this application is because my opponent refused to agree the extension. Therefore, they should pay the costs of this application. That could be a reasonable position. So the parties are able to agree those extensions and the agreement should be um given as long as there's, of course, there's no risk to appear in date, et cetera, et cetera. What you do find as well often if you agree an extension to one date, um you also have to agree um extensions to other dates because then there'll be a knock on effect. So if you delay in serving your expert evidence, means of course, that you're gonna need to extend, of course, the time for rating questions, the time for joint statements because of the knock on effect, the other directions you need to bear in mind, other things to bear in mind just briefly in relation to relief from sanctions, as we know, say for argument's sake, we've passed the date for witness evidence being due. So you make your application for relief from sanctions. What's important is you also comply. So you miss the date by a couple of days, file and serve the witness statements. Ok, you comply with it and what you say to the court and then you're applying for relief from sanctions is there was a two day delay because of the nature of what happened. You know, that you're still complied. You don't just sit back, wait for relief from sanctions and then f serve your witness statement. You comply as soon as you realize you haven't complied. In essence, bear in mind that there are some directions you can't extend by agreement. Uh And those are the dates for filing a directions questionnaire or a pretrial check. This a listing questionnaire, you can't extend those. You also can't extend dates. Um The court is set down for things like a cost and case management, hearing a pretrial review, the trial itself or the trial period you can't agree those by, uh, uh, you can't extend those by agreements, but of course, what you can do for some reason you can't comply with the, the date in question, you can make an application to the court to vary at the time in relation to compliance with those uh certain directions. Right? Setting aside default judgments, default judgment is where, uh, a judgment has been entered against a party, um, as we've seen in an earlier uh film, uh where they uh haven't filed either the lodgment of service or the defense within the period specified by the court by uh failing to do so. The uh claimant will then apply for default judgment um because of the, the defendant's failure to take the steps that are required by them. So then we have this default judgment. Default judgment generally can be for either um a sum to be assessed a future date. If it is a case of a person and you claim or alternatively, if it's a specified amount, I say a debt action, then the default judgment will be for a set um sum of money when it comes to setting aside a default judgment, which is where some reason the defendant has failed to file acknowledgement to service and time all the defense um in time and they ended up with this default judgment against them. They have the ability to set that default judgment side two routes to go down in relation to setting aside default judgment, you need to be aware of. The first is where the court must set it aside and the other is where it may so exercising its discretion. So when it must set aside is basically when there's been an error where the default judgment has been entered incorrectly for argument's sake where service hasn't been affected correctly. And the default judgment is entered where default judgment has been entered too early because the defendant did for enlargement of service has an extra. Um There's 28 days from the date, the date of service to file the defense. But then after the service has been filed and served, the claimant has then applied for default judgment for whatever reason. Larry error or whatever it may be. So vet they weren't entitled to that default judgment. It can be where the defendant has paid um the claim or where they've filed an admission and have made a request for time to pay that the claimant hasn't responded to. Also importantly, um is where the defendant's made an application for either strikeout or summary judgment that stays the claim. So if we have a situation, we'll look at strikeout and summary judgment in a moment. But if you had a situation where the defendant, um uh rather than filing a defense makes an application for summary judgment saying effectively that the claimant's case is no reasonable prospect of success. Um And even though the defense uh due date passes. It doesn't entitle the claimants who enter default judgment because the nature of the application for summary judgments and, or strike at states, the claims you can't do that. Um And if it's a case of where the judgment's entered wrongly, then the court must set that default judgment aside. The other circumstance of course is where the court may set it aside. That's all of the situations. So it's where the judgment's been entered correctly because the defendant has failed, um, to file the no, to service or defense within the requisite period of time. Um, and then we're looking then at the exercise of the court's discretion in considering whether, uh, we can have, uh, the defendant can have judgment set aside the idea here with the application must be made promptly. That's important. There's a test involved in what you'll see in a lot of, um, the specific applications. It looks at certain tests like we saw from relief from the sanctions. We looks at the ding criteria. We set an aside judgments. Um, there's an or, and, and I'll come on to different differentiations between ors and a, a bit later. But for setting aside default judgments, it's an, a one of the two grounds. So the defendant must satisfy the fact that they have a real prospect of successfully defending the claim or there is some other good reason. Ok? It doesn't have to be both, it's one or the other. Uh, they need to satisfy that court will always bear in mind. Uh The overriding objective when reaching a decision as well. What's come out as part of case law as well, which is important to be aware of? Um is the fact that um this application for certain side default judgments is also an application for relief from sanctions. Because if Etsy judgment in default is a sanction, in essence, what common law has actually stated is that when uh an application to set aside default judgment is considered, not only do you consider the overriding objective, not only do you consider the, the test which is set out within the relevant part of the CPR four? Setting aside default judgment, you also need to bear in mind relief and sanctions. So the D and criteria need to be applied as well in relation to that when it comes to setting aside default judgments as well, if you're the claimant and you're the one who's entered the default judgments, often it may be more cost effective for you to agree for that to be set aside. Um because maybe you know that the defendant due to preaction conduct does have a possible defense to the action, their explanations as to why they missed the date and why judgment was entered is reasonable. Um And if they have to make an application to set aside that default judgment as opposed to you consenting to that application, it's gonna be in a hearing in the future, which is just going to delay matters before effectively they get permission for it to be set aside and they matter, restart. So once it's um, set aside, then there'll be a date for them for the defendant, then part of the defense. So you're just back to where you were prior to entering um default judgment itself. So always bear in mind if you're acting for the claimant who's entered default judgment as to whether you think about consenting to the defendant's application summary judgment um as I mentioned, um briefly, so this will cause the need to um abstain the need to, to find any sort of defense to the uh to the claim. Uh The purpose of summary judgment is to conclude a case early where the opponent's case shows no reasonable prospect of success. It's available to either party. So claimants as against the defendant, defendant as against the claimants, um the court may enter some judgment against a party for all or part of a claim when and this is the test. Now, the test is very similar to when we uh may set aside a default judgment. The difference here is it's an and OK. Um so effectively, whereas with default judgment, it was an or one of those two stages with summary judgment, both of these elements that need to be considered before you get permission for summary judgment to be entered. So the party has no real prospect of succeeding on the claim or issue or defending the claim or issue. There's no real prospect and there is no other compelling reason why the case should be disposed of at trial. You have to be both those grounds or to be successful in application for summary judgments. The defendants uh can't make an application or summary judgment until the claimants are served. The particulars of claim makes sense, doesn't it? Because if you're going to say that there's no um reasonable prospects of success, you need to see what the claimant has pleaded to. Interestingly, the claimant uh may not make an application until the defendant has served either lodging a service or the defense. Uh Why you as a claimant would make an application for summary judgment to say the defendant's defense has no uh or defendant's defense has no reasonable uh prospects of success prior to them sending the defense, I don't know. Um because it's probably always debtor let them plead uh in response and then you can consider whether there is a reasonable prospect of defense or not. Uh But you are entitled if you wish to do so, um to apply for some rejudge in advance of that defense. Um But the defendant has to have served the acknowledgment of service. Um Before uh you do so, after summary judgments application hearing the court will exercise its case management powers and set down directions uh if necessary in relation to the next stages. So it could be the fact that um if summary judgment fails. So it's the defendant's application against the claimants, then the, the next stages will be when the defendant's defense uh is due to be a time set down for when the defendant needs to then file their defense to the claim. Whose importance is that summary judgment isn't a mini trial of the issues. It looks at that test real prospects of success. It doesn't evaluate what witnesses say, what the factual evidence is, what the documentary evidence is. It looks at the core elements of uh that prospect uh of success on the claim or the defense, another compelling reason. Uh So that's the other justification. The the and second um stage of that test may include cases where the defendant needs more time to investigate and that the results of such investigating may provide a real prospect of success. That may be a case where uh the claim has been issued um shortly before limitation, but maybe prior to the preaction protocol being complied with. So therefore, the defendant has another an opportunity to really investigate fully and respond in relation to the claimant's claims that could formula uh the uh other compelling reason. What the court can also do is make conditional orders at the summary judgment hearing as well if they feel that the defense raises prospects, but it may not succeed. They could order the defendant to be part of the claim into court or they could say, uh, order, the defendant to take a certain step d with, uh, in the claim within a defined period. So file the defense. Um, the court may also make an order as an un, less order with a provision for strikeout if not complied with, um, an unless order is an order where effectively the court says, unless you do something, there is going to be a sanction which applies to that. And the general sanction with an unless order is striking, you tend to see unless orders produced when a party has failed to follow directions questionnaire on time. CPR allows effectively if that happens, then the next stage is the need for an unless order, there's no automatic strikeout in general terms. When you fail to file uh a directions questionnaire, you normally end up with uh an unless order which of course, and if you don't follow the directions questionnaire at that stage, then you do end up with your claim or the events being struck out on the nature of um strike out. Um It's a separate element itself separate from summary judgment but very similar in a sense. They, they do go hand in hand, but there are different specifics behind them. Um So you do have that element of an overlap. It could be that you, when you make an application for summary judgment, you also make an application for strikeout in the alternative in case summary judgment doesn't succeed So the um the test, there is a claim or, or part of a claim may be struck out when the statement of case discloses no reasonable grounds for bringing or defending a claim. That's a little bit like the summary judgment, one which has no real prospects of success is, is no reasonable grounds for bringing or defending. Um We strike out it's an or not an and, and there's three elements here. So it's, or, or, or um or the same as the case is an abuse of the court's processes or whether there's have been a failure to comply with the raw practice direction or order. Just even those in turn, that the latter one failure to comply with the rule practice directional order, you could see that um in a situation where you have failed as a party to comply with a court order, say for finding witness evidence uh within a certain amount of time and you don't make an application for relief from sanctions. And it could be the fly that your opponent takes a harder line. And as a result of your failure actually makes an application for strikeout as opposed to just resting on the fact that the sanction being, you can't call that witness to give oral evidence. It's a harsher approach and a more strategic approach approach to what to do in the uh in the action. The statements of case is an abuse of the court's process. Um You would see an abuse of process where potentially the case has been litigated again for a second time. Um And then you end up with a strikeout application. So an example of that, if we're looking at say a personal reclaim where someone has made the claim for their injuries, uh that claim has been litigated and then settled. But then they realize, oh, I forgot about my loss of earnings claim due to the fact that I, that I've been injured and then issues again. Um, for that loss of earnings, it may end up being struck out as an abuse of the court's process because the idea is if you bring in a claim for injury, you should bring a claim for all result losses as a result of that injury at the same time as well. Therefore, that may result in an application for strike out due to in the abuse of the, uh the court's processes, interim payments. Um is the next um, application you need to, we need to look at. So the, the idea behind an interim payment is where we have a uh individual who is injured as a result of um, the uh, an accident, retro accidents, accidents at work, public liability claim, whatever it may be and is struggling um, through financial hardship reason being, of course, because they're injured and they've lost a leg, broken leg, whatever it may be, they're not able to work. So they're not able to earn the money they did prior to the accident. And therefore, what they're looking at is and asking for is an interim payment. So a sum of money now to help them manage their day to day living expenses, which is then offset as against their total claim. At conclusion, the idea here is say the claim is worth �100,000 and the claimant asks for an interim payment of �5000. Now at the conclusion, um then of the 100,000 pounds, only 95,000 pounds is payable because a claimant's dipped into that settlement fund at an early stage and had this 5000 pounds. Um What you do find in relation to in interim payments is defendants will take advantage of the situation um to their benefit by making offers and low offers. So when they um send blood in the water, so to speak, where you as the claimant's representative ask for an interim payment, they'll think. Ok. The claimant is obviously struggling financially. How do we take advantage of this? We make them an offer, we make them a, a low offer. So effectively, the claimant has a choice. You keep struggling financially or you take a sum of money which is going to help you manage in the immediate short term. But that sum of money may be less than what you may be entitled to that conclusion of the the claim. They utilize that tactically to their about you due to that quite commonly interim payments are always discretionary. There's no ri uh right to an interim payment at all. Um, an interim payment shouldn't be disclosed to the, the trial judge until after judgment on both liability and quantum because of course, um, that can prejudice the trial judge's view in relation to the sum of money to be awarded to the individual or whether they get a sum of money at all. As a general interim payments are deducted at conclusion, the grounds on which an order can be made, um, in relation to interim payments. Uh This is an, or where the defendant has admitted liability to pay damages or some of the money to the claimant where the claimant has obtained judgment for damages to be assessed. We're looking at there's no issue there in relation to the claimant. He's going to receive a sum of money at some point where the court is satisfied that the claimant would obtain judgments for a substantial amount of money from the defendant against whom the application is issued. Irrespective of whether there are multiple defendants, the action and that defendant is insured. It's a bit worthy. Um, and substantial is a subjective consideration isn't, um, guidelines in relation to what substantial needs a, what a substantial amount of money is. Um, that would include situations where maybe there is a liability dispute. But the court is of the view that it's going to be evidently a split uh, maybe a 5050 split on liability. And if the case is worth a large sum of money, then the court will look at what the client's gonna get 50% of that large sum of money. Uh, I'm thinking about the sum that's permitted in those circumstances. If it has to be insured as one under, uh, that part of the, of the rules, um, the court must order an interim payments of not more than a reasonable proportion of the likely amount of the final judgment. That's to avoid the risk that the court orders that more interim payments are made than the claimant actually recovers at conclusion. So the claimant ends up owing money. So the court wants to really avoid that again. No guidelines in relation to more than a reasonable proportion of the likely amount of the final judgments. Um The court will obviously have to take into account contrib liability as well as any relevant set off or, or counterclaim that's offset as against that claim. So, what the court's looking at when considering a reasonable proportion is, what will the claimant end up with in their hand? What's the net sum they're gonna re uh end up with? And that's a starting position to, they're gonna end up with um after deductions for negligence and et cetera, et cetera, 100,000 pounds. And the application is for an insurance payment of �80,000 that's unlikely successful. That's not a reasonable proportion of the likely amount because it's 80% of the, the final likely uh order. So that's the sort of sort of balancing exercise, the quartered exercise there. Uh The other evidence you need to support the uh application for an interim payment is the written evidence must state the sum sort. So you can't just say interim payment, please and then leave it out there. You have to specify the sum of money that you would like by way of an interim payment. Why the payment is sought generally? That would be because you um the clients suffering financially needs to pay the mortgage needs to pay the water bills or whatever it may be and can't do so at the moment. Cos he's not working, she's not working an estimate of the likely sum of any final judgments that helps the judge and work out a reasonable proportion. And once we look, look that on the previous slide in relation to personal injury, claims, details of special damages and past and future losses again, that helps um look at the reasonable proportion elements and then a claim of the fatal accidents would details the person whose behalf of the claim is made and the nature of the claim that looks at who it could be a fatal accident. Claim. You looking at various dependents of various individuals. One claimant, various individuals who have a uh a portion of that fatal accident compensation. Pie, so to speak, it's working out what proportion the individual applying for insurance payment would have of the ultimate sumer variance of the defen dependents there. It's just making sure again that reasonable proportion uh element is considered by the court. Um Timings are important in relation to interim payments. You can't make an application before the end of the period for filing the acknowledgment of service. Uh So that's that 14 days that you have posted deemed dates of service. So that's the earliest period at which you can make an application, you can make as many applications for interim payments as you like. And it's quite common to see, you know, uh some requests preu post issue what application and they chance the case goes continues further applications. Um The development must settle any outstanding crew liability to date if an interim payment is ordered or agreed. And that basically means the court will also need to take into account the elements of the benefits received to date because they know that when they make an order of the interim payments, the benefits incurred to date are also being settled as well. And there's that additional liability there. And so in order to, for the court to consider that the actual cree certificate which outlines the benefits received by the individual that needs to be filed at the uh the court uh in readiness for this insurance payments, specific disclosure to the underlying principle in relation to uh this is the one of justice and the need to avoid one party gaining an unfair advantage as a result of a document not being produced for inspection. Um Court could make an order for specific disclosure to disclose or search for documents that's reasonable to suppose may contain information that will assist the applicant's case will damage the respondent's case which may lead to a train of inquiry which has either of these consequences. Uh Application is usually after the order for disclosure has passed. So the idea is you've had an opportunity to consider what your opponents has disclosed to you. You're able to say, well, that's not sufficient or there are documents missing from there or the search hasn't been uh carried out uh appropriately. Um And therefore you have the opportunity therefore strengthen your application for specific disclosure. Then um the court will consider whether CPR 80 would eliminate the need for a specific disclosure order seeing CPR 80 in relation to statements of case. So, uh it's where you do the request for further information. So rather than the application for specific disclosure, would the same job be done. But by a request for further information to explain things, it's just something the court will bear in mind because that of course, will keep elements of cost down um and be maybe potentially more proportionate as opposed to a specific disclosure application. The court may order specific disclosure if it believes that disclosure um or uh given is inadequate uh inadequate hasn't been de uh defined. Um but the sort of things we're looking at there where the search was inadequate so effectively with the search undertaken was really just a poor job done. And wasn't the appropriate search required by a party when they're looking at disclosing uh documents under um standard disclosure. Uh important documents are known to exist that have not been disclosed specifically where you're aware that these documents are in existence, you anticipated them to be disclosed either because you're aware because of the nature of the, the facts of the case that these things exist or there are documents which are obvious in existence. So for example, you've got a uh dispute on liability following a road traffic accident, elements of the vehicle examination report and things like that. Things that will have happened after that vehicle has been damaged but do not form part of disclosure, things that you would expect to see in essence, documents referred to in a statement of case or correspondence, they have to be disclosed. That could be another reason where they're referred to. Um but then aren't disclosed as part of the disclosure process where inspection is objected to upon the grounds of proportionality, but you disagree. So that's where the your opponent says we have these documents, but you're not seeing them because uh they are uh it's not proportionate for us to disclose them. You say, well, actually it is proportionate because they are necessary to the claim, claim when they fall under the definition of standard disclosure or you dispute the elements of privilege where the defendant's saying, or your opponent's saying you're not having these because they're privileged. But you, you, you disagree with that. Therefore, you have a specific disclosure for that document to be disclosed. Um The court may order after a successful application, various elements in relation to specific disclosure. It could be the fact that the court, if they feel that the uh one party has made uh poor efforts at um searching for documents, they may order a supplemental uh list of documents. Sorry, do your job. Uh again, would do better this time. Um They could order for disclosure of specific documents or a specific class of documents or to carry out a new specified search and to disclose documents revealed by that search. So lots of different um orders that can uh end up uh being a result of this specific disclosure application. It's important as your witness evidence needs to address uh a description of the documents or class of documents sought and the extent of the search sought and which reason or proportionate necessary. You can't just go in there and say uh specific disclosure. Everything please. It has to be defined and refined application specify maybe where um the defendant or the, your, the claimant has failed to comply with their uh disclosure obligations. Things where you um believe this document is in existence but hasn't been disclosed and why you believe it to be in existence and of course, why it's reason unnecessary and proportionate for that document um to be um disclosed. We also have another type of disclosures. One of only two types of application which uh take place prior to the issue of proceeding. It's called a preaction disclosure location. So you see in preaction protocol phase, early disclosure of documents is important um process and features to what procedure um Preaction protocols designed to encourage early full exchange of relevant and essential documents. So if a parties dissatisfied with their opponent's response to a request for documents, preaction, they can make a decision. Of course, they can litigate uh push on to directions to disclosure later on. But of course, they're in the litigation process then or they can make an application for preaction disclosure prior to proceedings being um issued benefits of preemption disclosure. Of course is where you have a claim. Maybe you're not clear or satisfied as to the prospects of success of your claim. Why fire into litigation and then ultimately end up following directions for disclosure. You realize you have to discontinue because you don't have uh a strong case. Make an application for preaction disclosure, evaluate your case at that point and it may result in you deciding. Well, we don't have a claim to be brought here because there's no um duty o or the there's no um breach of the duty and the tortious claim because of the nature of the documents should now have been produced. The requirements of the, the preaction disclosure application are that uh the application is sought by and against parties who are likely to be, uh to be parties in a subsequent action by. That's the intended defendant is the one that if you were to litigate would go to be uh the defendant in uh that claim. If it's not, then of course, it's a non party um order disclosure order which is a different kettle of fish. This is a preaction disclosure. Uh application application relates to documents that fall within the definition of standard disclosure. And we've seen that in relation to disclosure itself. And what would stand what that phrase means, standard disclosure and what documents that uh incorporates the advanced disclosure is necessary to dispose fairly of the anticipated proceedings, save costs or assist resolution with that we need to commence proceedings. So rather has been a fishing expedition. It's some things that are essential really for you to make a decision as to whether the claim can continue the strength of um the claim uh that's been brought, things can narrow down the issues between the parties. Have you seen protocols narrowing down the issues and the essential uh requirement there just in relation to reaction disclosure as well. Just be aware if you're in litigation and it's not preaction disclosure, it's specific disclosure because prior to litigation. It's preaction disclosure, not specific disclosure, specific disclosure comes when you uh uh parts of litigation you actually in the process of litigation looking at injunctions. Now, this is the other type of application which can be made prior to the shift court proceedings. So apart from preaction disclosure, we've also got injunctions that you don't need to be in litigation to make an application for an injunction. Injunctions can be interim or uh or final order. So a temporary order at this time to uh stop doing something or do something or literally you want, this is the order you not do it ever again. Uh In essence, so that's why it's in interim or final. It can be sorted to say any time during proceedings or Preiss issue. The only rule is in relation to Preiss issue. If you're going for an injunction prior to the issue of court proceedings, you have to give an undertaking to the court to issue proceedings forthwith. So even if it is a pre litigation, a patient from injunction, you're still gonna get into litigation very, very early because of the requirements and that to give that undertaking to issue forthwith. So various types of injunctions prohibitory to stop um someone taking certain steps or mandatory to make uh the individual or the other party take a certain step. Um Breach of an injunction is punishable as a contempt of court. So enter injunctions basically remain in force until the return date. The idea here is you make your application for an injunction, it's done on the papers on without notice, application. And if successful, then you have this interim injunction which is um ordered. So it stops the uh party against the in whom the injunction is sought from taking the action or doing something. Um then that's served and then we have what's called a return date. So we have uh very early on the time you go back to the court where then the other party to the injunction, the person engage with whom you have obtained this injunction is able to make their appropriate representations to the court, either that the injunction should be removed or amended or whatever it may be. Um at the return date, of course, the court considers what, what do we do here? Do we make the order final when they, the uh party against whom the injunction has been ordered? Is there to give the representations? Do we just continue it to another date in the, in the future or do we um dismiss it? So lots of different options there open to the court upon hearing representations from the other party to the other side of the injunction County quarter has got limited powers with injunctions. They can't make sort search orders which we're looking at at the moment and they have limitations with freezing orders. Uh But don't forget as well that if you have a case, which is in litigation and you are looking at uh an injunction like a search order. Uh and you are in the county court, you can transfer it to the High Court for the nature of applying for that injunction. Don't forget we've seen before. There is that process that you can transfer between County and High Court with um good reason to do so. And actually the nature of applying for an injunction is one of those good reasons you can get injunctions urgently. Um If the course it's without notice, interim injunction, um it's made, it needs to be served upon the respondent to the uh applications we've seen before applicants and respondents. The respondents personally getting the injunction has made um has to be served very, very quickly because the return date for the next stage of your injunction be very very shortly after the original date normally within a week and so on. Depending on the nature of the uh the circumstances behind the uh injunction. Interim injunction order. What's important to be aware of in relation to the injunction is when you get that interim injunction, you need to serve it personally upon the respondents, respondent must comply with the terms of the injunction upon service of the same. Of course, he saw earlier if you don't comply, it can be considered contempt of court. So with injunctions, some of the key things you need to think about um is the expense justified because it is an expensive process. Um You need to bear in mind that the applicant will need to give an undertaking in damages if the injunction is granted and the respondent then succeeds in setting aside that order because then the respondent will seek damages and their cost because effectively you've been delayed in doing something. There's been a result of the loss as a result of that injunction, for example, the the council and have to stop drilling at someone's home for a week because of this injunction that's cost them money lost that to still pay the wages of individuals. The machine is just there unused. Um That sort of impact important as well as well as the applicant. You need to be aware that that undertaking in damages. Um because effectively the respondents, they're successful in setting aside that interim uh order, they'll seek their damaging costs from you. And that can be a very costly process and be of a risk for the applicants involved. And in light of that risk and in light of the undertaking that the applicant gives in relation to that the applicant may be required to pay a sum of money into court um to recognize that risk. And again, um if it's Preiss issue, you have to give an undertaking to issue court proceedings uh forthwith the injunctions, they have to have an element of urgency behind them and that's our purpose behind the injunction. It stops the body doing something because of the elements of damage being caused, loss, being caused by uh carrying on what they're carrying on with or not doing what they should be doing. Um So if there's no urgency, generally, you won't get uh an injunction ordered, injunctions won't be granted where damages is an adequate remedy. That's important. So, uh where damages can compensate uh the applicant adequately, they're not gonna get an injunction. They're just getting an award of damages instead criteria. The court must bear in mind when considering whether to grant an injunction, is there a serious issue to be tried? Would damages be in adequate remedies? We've seen earlier that pose to an injunction whether the undertaking given by the applicant to protect the respondent from loss would be adequate. So for example, if uh it is stopping the council digging up the road outside your house cos it um causes dust um and means you your windows get dirty. Um If that uh ACA is an individual, um depending on the nature of what their income is effectively, would their undertaking to pay damages be sufficient? So, have they got the money um to actually put into court orders to give that undertaking? Will it mean nothing whatsoever because they don't have any funds whatsoever to pay the respondents losses and costs because of the nature of an injury. Injunction order is ordered as well as the, what's called the balance of convenience that's weighing up the respective inconvenience uh or loss for each party depending on whether or not the injunction is granted alternatives to injunctions. Um You could potentially have what's called uh an expedited trial. So that's basically where a trial happens sooner rather than later, where we do have this nature of the ongoing loss that you want to prevent. Um But rather than injunction, maybe we can get the matter heard uh at court as soon as possible. Um, applications for expedited trials. There's no guidance in the civil procedure rules in relation to that. All we're looking at is common law principles that support whether you, you need to get permission for an expedited trial. Um, the sort of principles have been established by case law, uh, cases should be brought to court as soon as reasonably practicable. The order for an expedited trial is within discretion of the, of the judge. The applicant must satisfy the court that there is objective urgency and the procedural history of the case must be taken into account and the respondents if objecting will show real prejudice will be caused by an ex expedited trial because then on the back foot, it may be the fact they prejudice in relation to the evidence. They have an opportunity to get together in relation to uh, the nature of this expedited trial. We've only ever seen expedited trial once. Um, not to do with an injunction, but it was where we had a situation where an, uh, client was, um, rendered paraplegic as a result of a road traffic accident. And there was a liability dispute. It was a full on dispute. I the defendant says it wasn't my fault. It's the claimant's fault. He's the author of his own misfortune. And the claimant of course says it's the defendant's fault. So in essence, it was a, a win or lose um situation uh in light of the circumstances, the facts of the case and the unfortunate thing is in that case is the claimant developed um terminal cancer, nothing to do with the accident at all. Just as it was sort of, um, you know, I think I can't think you've been a heavy smoker prior to the accident anyway. Um and uh his prognosis um was that he would die before the trial date. In essence, because he was terminal. So what we did there was have an expedited trial which was successful. So we got the trial moved so effectively the claimant could go and give evidence at court orally uh on liability. And that was important because if he died prior to uh the trial, then any witness statements would be uh treated as hearsay. Um And the claimant in that case, um he did um attend court admittedly with oxygen um mask and, and, and the tanks involved gave his evidence. Um And the good news behind that is that he was successful in form, he won, he won the case, which was great for them uh uh his dependents because of course, it turned into a claim made by the estate on um on his behalf. Um He unfortunately died very, very shortly after that trial took place. So the expedited trial was the, the right thing to do in that situation. That's just the only time I've ever come across it in practice different types of injunctions. So I mentioned search orders and freezing injunctions. It's just deals with these um in a little bit of detail. No, no. So idea of a freezing injunction, it frees the as freezes the assets of the respondents. And that's where you have a concern effectively. You're making a claim uh that the, you're not gonna, the respondent isn't going to have the funds to settle um the claim that you're bringing because maybe they're moving their assets. So it's not the jurisdiction or whatever it needs to be. Now, the difference in relation to injunctions and how it differs from your usual applications we saw in film 18. Is that rather than a witness statement to support the application you need what's called an affidavit, an affidavit it exactly uh the same in essence, it's a witness statement. He has a statement of truth, but the difference is you sign it by way of an oath. So you have to swear an oath that it's a truth upon a bone in front of someone who's a commissioner for oaths or a solicitor. That's a difference in relation to an affidavit, affidavit, more formal document um than uh a witness statement. Arguably. So with a freezing in junction and the court must be satisfied. There's a cause of action in England and Wales, the applicant has a good arguable case. The respondent has assets within the jurisdiction and there's a real risk that the respondent may dispose or dissipate those assets before judgment can be enforced. The do you stop your opponent getting rid of money that you may ultimately want to claim in settlement of your claim for compensation rather than that, that may be search orders are um unusual but um you, you do need to be aware of them. They are mentioned specifically in the SQ assessment criteria. They use where there's a risk that the respondent will destroy or rid themselves of incriminating documents or property. Uh The order will allow the applicant to search and seize evidence and again supported by an affidavit not witness statement as is a safe situation for every uh interim injunction ordered uh application made. Uh princip was considered by the court. There must be an extremely strong chroma facie case on the merits. The respondent's activities must cause very serious potential or actual harm to the applicant's interests and there must be clear evidence that the incriminating documents or things are in the respondent's possession and that there's a real prospect that social material or may be destroyed before an on notice. Application can be made, that's a bit of a tall order uh in relation to that sort of application, but be aware of it. As we know from the sqe assessment criteria, you need to be aware of it. And as we've seen uh from feedback, the sort of unusual elements um that come up are quite common um to appear on your um assessment or your exam, just be aware of how much search was, right. Let's try a practice question in this area. Then if you act on behalf of the claimants who claim for breach of contract, the claimant's allegations relate to express terms in the formation of the contract and the inclusion or interpretation of those. Whilst the parties were negotiating the contract, there was a lot of correspondence exchanged as well as various in person meetings, which attendants notes were taken. A lot of these have not yet been disclosed by the defendant. Despite the fact that disclosure lists were ordered by the court to be served last week, the defendant served the disclosure list, but the majority of these documents were missing. What steps should the claimant now take? A, the claimant should write to the defendant and ask for the documents to be disclosed. If the, if the defendant does not respond all delays, then the claimant should make an application for preaction disclosure. B, the claimant should make an application for reaction disclosure. C The claimant should make an application for specific disclosure. D the claimant should write to the defendant and ask for the documents to be disclosed if the defendant does not respond or delays, then the claimant should make an application for specific disclosure. E the claimant should write to the defendant and ask for the documents to be disclosed. B is the right answer here. So the claimant should write to the defendant and ask for the documents to be disclosed. If the defendant does not respond or delays, then the claimant should make an application for the specific disclosure. So in relation to the other answers, you're told in the question that uh we have an order, the disclosure and the parties then or the defendant serves their disclosure list. So we know uh we know we're in litigation in that case. So therefore A and B when it refers to preaction disclosure aren't appropriate because you're within litigation. So you don't have preaction disclosure when you're litigated relation to see. Do you make an application for specific disclosure? That is right, not the single best answer obviously, because what the court would um expect as we saw uh from film 18 is pre sorry, pre application. Um, a process followed. So you don't just fire into an application, you try and avoid the need for that if the parties can agree um to the elements in questions. So it may be the fact you asked for the these documents from the defendant and they go, oh yeah, sorry about that here, here they are. Or we overlook that. Here you go. Then you don't need the application for specific disclosure. Of course, if they don't respond or refuse, then you can go on and make the application. So just be aware. Um it is right. C is right, but it is a specific disclosure application that needs to be borne in mind, but there are steps to take prior to undertaking or uh applying um for specific disclosure. Uh and not the single best answer could just refer to write, writing to the defendant and asking for those documents doesn't deal with the fact that if the defendant doesn't respond, what steps you then take in relation to the type of application you make. Thank you very much.

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Part 20 - Webinar

00:33:34

Hello, my name is Darren Hack Green. Uh This is Film 20 in relation to tr procedure on the dispute resolution sqe um course. So um first I'm gonna look at uh I'm going straight into a document called an N 170 part of the SQ A assessment criteria requires you to know about the purpose um of what's called a listing questionnaire or a pretrial checklist. In essence, you'll hear that terminology interchangeably. So it's the same thing, listing questionnaire or pretrial pretrial checklist. They're both the same documents. So I'm just gonna share my screen and show you what the document looks like. Um As I said before, you don't need to, I just know the specific form you don't need to know. It's an N 170 for example, for the SQE assessment criteria, um you don't need to and won't be required to draft or complete uh a document in the exam. However, what you may be required to do is understand the content of the M 170 the contents of the pretrial checklist. Um And I think it's helpful for your revision purposes just to actually have a look at that document and what you need to complete because it will help actually remind you maybe uh for revision purposes of a specific question. So for argument's sake, a question I may ask you about. So the content about uh availability of, um, witnesses or the pa uh parties in relation to any future trial date and that information will be there within the pre chat list. Well, let's just have a look at the, um, the form itself, the usual bits and pieces which are obvious, you know, the, the name of the court, et cetera, et cetera dates fixed for a trial or a trial period there. Generally, um, you would probably have a trial period as supposed to a trial. If you're doing a pretrial checklist, your trial period, we'll look at it in a moment. But what happens uh, as a course of directions is the court will list the matter for a period of time. Normally, depending on the type of case of multi track case, maybe about a three month period. The idea being that trial will take place within that three month period and therefore the parties submit their dates to avoid within that period. So the court isn't listed on date when a movie counts or has another case or your client has a hospital appointment or a holiday pre booked. You can put the details here. So the usual who you are as a party, um, confirmation of compliance with directions is important. We do is you confirm you've complied with the directions uh, already given, require action by you. Um If you, uh, haven't, you can, uh, confirm to the court when you're gonna do those buying the date there. Bottom. Uh, about this is, it's about you and your comparative directions. If your opponent hasn't complied, that's not what this box is for. So it's rather your declarations in relation to your compliance. Generally, though pretrial checklist stage, a lot of the majority of the directions should have been complied with, they gone by. It may be, this is necessary because you've agreed an extension of the maximum 28 days with your opponent for something. And therefore that uh time limit hasn't passed before the pretrial check list is due. Um So you can put the details in there. The need to say that you've got additional directions which are necessary for the trial takes place because um yes. And then of course you have to attach an application and a draft order. You can't just simply say yes, I'll have extra time for X and Y. Uh an application would be required and whether you agree those additional directions with your opponents in relation to witnesses. This how many witnesses uh including yourself, yourself being the claimant. This is completely or the defendant depending on who you represent, uh will be given evidence on your behalf if the trial date is not fixed or any days in the trial period you or your witnesses would wish to avoid if possible. And then you get the opportunity of to depend on the number of witnesses. You've got the dates to be avoided. And of course, the reasoning for that in your pre booked holiday, um hospital appointments, things like that. Do any of your witnesses require any special facilities or arrangements at court such as those with a disability? It's important you need to check with all of your witnesses in relation to that. Um It may be that you've got witnesses who are hard of hearing, mainly some, some, some sort of sexual provisions in relation to that. It may be uh witnesses who require disabled access to a courtroom, some courtrooms, um if they're in older buildings may not have that uh readily available or certainly some of the courtrooms may not, some courtrooms would be more um disabled, have access for disabled people. And then what the court would look to do then if they have some courts which have disabled access, ensure that your case is listed within uh that specific court, you will be uh providing an interpreter for any of your witnesses. Again, that looks at language um issues. Uh We've looked at uh drafting witness statements for witnesses whose first language is in English in a, in an earlier video, earlier film. Um That's whether you need an interpreter there for uh your witnesses, which if you have a witness whose statement has been drafted in a language other than English. The answer is going to be yes, you do need an interpreter in the expert evidence stage. Um, you state down the name of the expert, the field of expertise for the experts, psychiatry, orthopedic surgery, whatever it may be, whether they're a joint expert, and we've looked at the nature of joint experts in the expert evidence film and whether the report is agreed and whether there's been permission given for oral evidence at trial. Cos of course, as you know, um for an expert to go to trial and give oral evidence permission needs to be granted by the court. Has there been a discussion between the experts? Discussion means actually the preparation for the joint statements and then again, have the experts signed a joint statement if your expert is giving oral evidence and the trial is not yet fixed. Again, if you have got permission for oral expert evidence, you've got the opportunity there of listing the expert states to avoid. So earlier, have the uh opportunity of listing the witnesses uh dates to avoid that include your, your own client. And here you have the opportunity of listing your expert states to avoid the trial and again, further dates to avoid coming um legal representation. So who's representing you the case? Of course, if you're soliciting in person, it's you otherwise solicitor or council. And again, uh for the loo representative um dates to avoid there as well. Um So, so that Cork can actually list in a day that all the parties are available in relation to the trial itself. Has the estimate of the time uh changed for the, the trial. I has the, the bottle of happy new directions. The trial period have been listed. So you'll have that trial window as I explained earlier and it'll be listed for maybe the, the idea is a three day period within that trial window. It maybe things have developed since then and maybe now what time is required. But alternatively, it may be the fact that when that listing was done, there was a dispute on liability and quantum and now liability has been um sorted out and agreed by way of some form of AD R. Um And therefore that's a quantum matter only which reduces the at the time required for trial. That's where you state that there. And again, it different from the original estimate. Um what's uh have you agreed with your opponent the, the time need? Um There's a question here about whether your timetable for trial is attached has been agreed with the other party. And so one of the requirements to attach a pretrial chat list is what's called a trial timetable. And that's where you set out in draft, how you foresee the trial proceeding. So if there's a three day trial, you'll have a document which outlines each of the specific days to day one dealing with maybe opening um statements of his speeches. Um moving on, maybe to additional evidence from the claimants and cross examination and then move to day two, think about the expert evidence, et cetera, et cetera. Um And then the idea is trying to agree that with your opponent prior to attaching it to the pretrial checklist and filing that in court in relation to fast track and intermediate track cases. You've got the opportunity of a short notice period for a trial. So would you be prepared to accept shorter notice of the date fixed for trial? The idea there is that for cases which can be dealt with in a shorter period, so fast track within a day, intermediate track within three days. Um And maybe the court has several cases, simply settle and drop out. So have some availability at uh last minute sort of short notice, the opportunity there. So you'll, you'll take that uh opportunity under short notice. You have to discuss that with your client. Obviously, if they can simply drop everything and go to a trial, it may be that it works your advantage. If you have a client, maybe who is retired. Um and therefore, and has no immediate plans for holidays, et cetera, et cetera, then, uh there's no reason why they couldn't take advantage of this and go to trial sooner than uh than planned and again, back onto vulnerability every stage. Uh We're looking at vulnerability, we saw this on the claim form, we saw it at directions questionnaire, you have to consider it at every stage. But what happens is the court will actually force you to consider it at key stages in the claim. And again, this will force you to think about vulnerability when looking at the evidence that will be given at trial by a witness. And then the opportunity to explain there. Um What could be done to help support uh a witness who is vulnerable. It could be the fact that greater time is given uh for the witness to give evidence. Um some understanding over the fact that the questions asked of that witness because of maybe some learning difficulties need to be simplified or repeated and the explanation there and again, document checklist, what you attach to that questionnaire. So an application and a fee for additional directions, if that's required the proposed timetable for trial that we've suggested uh the draft order that I called accompanies the, the application itself and the usual bits about it, signature and the, the date and your firm, et cetera, et cetera in the bottom of that document there. And it's worthwhile being aware of that M 170 having a look at that form. Um It could easily form a question in uh the sqe in relation to the contents of um that M 170 not in relation to, you know, completing gaps or anything like that, mainly in relation to being aware of the preparation that you need to undertake. So as you've seen, you need to check elements of vulnerability and also certainly base to avoid for all the parties um prior to actually completing that document, cos there's the SQ assessment criteria, we talked about the breach R checklist of the listing, listing questionnaire and the time scales there. Um which I, I've, I've been through the idea, of course, with the BR checklist is, it's a readiness for trial form. That's the whole purpose of it. It's very similar to directions questionnaire, uh and its makeup, be aware of hearing fees. So there's a completely draconian um, rule in relation to hearing fees that if you don't pay your hearing fee on time, your case is automatically struck out. Um, if you fall foul of this, as you know, uh, we do have the opportunity for a relief from sanctions, application. The sanctions taken effect, the case has been struck out. Um, you make the application for relief asking it to be reinstated. In essence, um, generally I've found something in practice that is a difficult exercise uh, to undertake when your case has been struck out for not paying the hearing fee. You'll find that the courts and judiciary have a little sympathy in relation to that step. Although I do feel that the idea that you can miss a date for the service of a witness statement and get away with it, in essence, with a relief and sanctions application. But you miss off paying a hearing fee and your case is dead in the water, I think is a little draconian. Um, the hearing fees depend on the nature of the case as a sliding scale for small claims track matters, fast track cases. It's 545 pounds and intermediates and multi track case is 1175 pounds. So the, the internet, it's a multi track fees almost double that. Um, just watch that and the fees are, uh, liable to change over time. Uh, the UEX 50 which is fees won't confirm the, the fees uh for the court. Um, but just be aware, it's unlikely you're going to get a question in relation to the size of the fee cos that changes regularly, but you just need to understand the need to pay that fee. Um, and that it differs depending on the nature of the allocation of the case. And in some cases, certainly the larger value cases we have pretrial reviews. These are sort of a bit like a, again a readiness for trial hearing. As opposed to just the pretrial checklist you complete. Um, legal representatives attend, the judge will tend to look at the elements of the case in preparation for the trial. It could be elements that the judge will look at is, you know, does it really need four days? Can this be reduced down? For example, by allowing the judge at a day's reading time. Uh or alternatively, the judge will say, well, what have you done in relation to liability? What steps are being undertaken in relation to alternative dispute resolutions? Looking at those sorts of uh issues, uh A bundle is prepared for that as if it were effectively the preparation for the trial itself. The judge has got all the evi evidence to hand. You can look at various different uh matters as well, quite useful as well with the pretrial review because arguably you could utilize that hearing to make an application potentially for oral expert evidence that's heard at the uh the pretrial review as well. We also have pres settlement hearings, they're different from pretrial reviews. So pres settlement hearing um is a way of the court really um forcing AD R upon the parties. So I've said earlier in the, the, the film for ad R that the court um can never make you undertake uh ad R, they can encourage precepts of a meeting. It is similar to that, but it's more of a uh an arm behind the back form of encouragement. So the idea is these pres settlement hearings are listed again like a pretty short review. You get your bundles um sorted and sent um the parties have to go. So that would be the claim and say the individual claiming um the, the actual bringing the action and the defendant, the defendant, it has to be the defendant who is capable of making decisions in relation to payments. So it may be the insurer and for the defendant who needs to go the one who's able to give them. Yes, I, I can agree settlement at 500,000 pounds, whatever it may be. Um, the judge will discuss, um, with the parties whether ad I has been attempted and will consider narrowing down the issues in the case and on the day itself, um the judge actually may insist that the parties take the opportunity to um discuss the matter. So I've seen pres settlement hearings where the judge has inquired about uh liability. Has there been discussions between the parties? Uh The answer is no, the judge has said go off off, you go, then, um, you've got an hour come back uh in an hour and then we'll, we'll talk further as to how you've got on in relation to those discussions. So, in essence, forcing the parties to, to knock their heads together in relation to the, the potential for settlements. The idea behind these preset hearings is that they take judicial time. They may save uh the cost of a lengthy trial. Uh And of course, a lot of court time taken over those days of trial at a later stage said earlier in relation to trial windows. So you'll get this trial window set down by the court which is a period of time, uh within which the trial is expected to take place, uh a longer period for cases which take a longer time. So intermediate track and multi track cases will require uh a longer amount of time for the trial, fast track when it's a day. So you may have a shorter period for a fast track trial, maybe a three week period for a fast track trial. Normally about three months for an intermediate track or multi track um uh trial window period. The idea is that that trial window, once it's set, that's when the trial is going to take place. What do you need to do then once you get your trial window, well, of course, you need to notify all the, um, parties involved for your clients. So that's your witnesses, your clients, you need to notify your council via their chambers. You need to notify any expert witnesses in case they are required to give oral evidence and you tell them in essence, here's a trial window. Um, please note it. Uh, and have you got any dates um, that you can't make within that trial window? And also if any further dates come up in the future, uh, within that trial window, which you then can't make. You need to let me know, um, as soon as possible after that, we then get the trial date, um, being listed generally after your pretrial checklist has been sent to court. Um, we get a hearing notice, uh, that confirms the date of the trial the time, um et cetera. It may also require uh or set out what other documents are required. So maybe there's a specification for skeleton arguments three days before the trial um or anything like that. Generally, the, the trial date notice will also specify when the hearing fee uh is due to be paid as well. You need to be aware about witness summonses and whether you need them uh and when it's appropriate to send them. So the idea of a witness summons is it compels a witness to attend court? You need a summons for, for every late witness if you're going to uh summons. And that means that you can't just do one summons for, for three witnesses. It's one summons per witness. Um You can't obviously summons your clients um to, to get to trial because their obligation is to go anyway, but you can summons your, um any of the, the lay witnesses. You can also summons your, um your experts and to uh to whether they require that some experts who do a lot of any. Yes work may require uh a summons uh as well, but generally you normally don't uh summons any experts to give uh to go to, to court, to give evidence because they've been paid um for the pleasure. So they are in most of the circumstances are eager to go. Um That's why there's no requirement different for witnesses, obviously, because they're not being paid to attend the, uh, the trial, you complete a form N 20. Again, you don't need to know that specific form, but there's a witness summons form that you need to complete. Um, if the court is going to serve, uh, that upon the witnesses, then you need to file, um, 32 copies of that. So one copy will, the court will serve copy written to you. Um, and then they, they'll send the, the one on obviously to the, the witness. Um, if you are intending to serve it, which is probably the better thing, which I certainly do. Um, three copies. Uh Court keeps one returns two to you one for your file and one to serve on the, um, on the witness as a fee for the summons of 21 pounds. Um And also what's important is when you serve the summons, you either attached conduct money to that summons, uh or you offer conduct money to, uh, to witness with that summons. So the conduct money is basically you offer that travel expenses and any loss of time in relation to attending trials that could be, um, loss of earnings for the, the day that they're taking to attend, uh, the, the trial itself. Um If the court is going to be, um, serving the, the witness summons, you also need to pay the conduct money to the court. So the court can tender it with the, with the summons. That's why it gets more complex if you're gonna have the, uh, the court serve. The, uh, the summons says it's easier really for you to do it yourself. Um, so it was, you have to affect service, um, with at least seven days before the trial itself. And then, um, obviously the summons is invalid if you don't, uh, either attach conduct money or make the offer in relation to the, uh, the conduct and money is there. Um, what's important to be aware of is that if you have a police witness, uh, the police will not attend unless they, um, are sent to summons. Whereas the lay witness, they may attend the summons just basically compels them to attend. So you don't necessarily, there's no requirement that you have to summons every witness, but with the police, you have to summon them otherwise they won't go. What happens if a, uh, witness, um, fails to attend, having been served a summons. Generally, I suppose, arguments say generally not much to be perfectly frank with you. But what the rules state is that if it is a county court case, they may be liable for a fine not exceeding the pounds and pounds. And if they, uh, if it's a high court case, they may be found in contempt of court and contempt of court pan, uh, lead to committal proceedings are any of those steps ever really taken? And that, that's extreme, um, cases, uh, to be honest with you, um, you don't tend to see if a witness doesn intend, uh, turn up, um, that the, the, uh, the person who summons and kicking up a storm and insisting on fines and, and committal proceedings and things like that tend to be the way things progress. Um, of course, what you need to bear in mind is if you don't summon a witness and that witness doesn't turn up, then there's a conduct issue there for you with the code of conduct that you have an act in your client's best interest, pursuant to principle seven. because you need to force them to go. Um And of course, then if that's the case, if there is any requirement from the German that comes down to you, it's your fault in relation to that. So the cost of that German may be payable by you in relation to whether, just because a witness doesn't turn up, whether the case is adjourned. It's a matter for the, the court. Um, if you had maybe uh one independent witness and there is a liability dispute. Um And it's of a significant value. So effectively that one witness is really key to the issue of liability and success or, or not of the claim, then there may be a good reason to vacate the trial or v adjourn the trial and then list it for another date when the witness can then attend. Although you'd need really to understand why the witness isn't there if they just not turned up and then therefore, they don't intend to turn up to a future, um, trial either or maybe it's just something untoward like ill child or whatever it may be that would support your application for the AO uh, generally though what will happen is, um, as we've seen when we looked at a different film at the witness statements, if it's signed by witness, which will have been arguably if your summons in them, um, can be treated as hearsay. Of course, it goes to the weight of the, the evidence which is considered, um, but that's the, the way to still have that witness's evidence considered by the judge. Um, even if they're not there to give oral evidence. So once we get the, the trial, they, like when we've got the, the trial window, you notify the relevant parties immediately, your experts, if they're given all evidence, your barrister, uh be their chambers, your plant, the witnesses so that everyone is aware of that date. So they got it in the diary. So they don't miss it. And of course, if it turns out that a key party witness can't make that trial date, then you need to consider whether you make an application to vacate, um, that trial, you, um, I suppose arguably thinking about when that would be appropriate. I mean, if you've given that, uh, individual witness, whoever it may be the dates for the trial window and they're just forgotten to tell you when they, uh, are not available. Um, then it may be, the court has a little sympathy in relation to the, the trial date being moved because it takes a lot of court admin time to actually shift a trial date. So the court is quite reticent to vacate to trial and relist. Generally speaking, be aware that, uh, that if a party doesn't attend the trial for their claim, there are some quite um stringent um uh consequences in relation to that. So if you're the claimant and you don't tend attend, then your case may proceed in your absence and or your statement of case you claim from it because a claim struck out. Um If the defendant has a counter claim, uh and the claimant hasn't attended, then judgment may simply be entered on the counter claim. So effectively, there are, you know, quite serious consequences to your, um your client not attending uh the trial. So it's essential um to ensure that they get all this information about the trial. They, they know where they going and when they're going, et cetera, et cetera. As soon as that is listed, be aware about the need to um prepare trial bundles. Trial bundles are a bundle which is utilized for the uh the court um set out with an index in all the four elements in relation to the uh the requirements and contents of that. So again, we see this is very similar to your, your pretrial review bundle and your um your preset hearing bundle effectively, you incorporate all of the documents the court needs to consider uh in relation to the, the trial or reacts expert evidence or your statements in case any documents involved as well. Um It's prepared by the claimants. Um The only time when it isn't prepared, but the claimant is when the claimant is a litigant in person. And then of course, it's prepared by the defendant for, um, for them. You, um, you draft this trial bundle index which is then agreed with the parties to make sure that all of the documents that are core are included in that bundle. Obviously, any privilege, um, documents that prejudiced documentation is excluded um from that bundle and that privilege, um, is waived and the claimant needs to file and serve the bundle between 3 to 7 days before the trial starts a bit of an odd period. I accept that 3 to 7 days before the trial starts. But the reason for that is because, um, often when you have a case listed for trial, say a specific court sometimes due to lack of judiciary or because of the court timetabling, the court may send it to another local court within the same region. What they don't want to do. The court is have a bundle 14 days before the trial in Birmingham and then they bumped it out to don't know Warsaw county court and then the court has to send the bundle on. They don't want that if they're going to bump it, they want to bump it to Warsaw County Court. And then, um, 3 to 7 days before the trial starts, that's when you get that bundle into the, the court. At that point, we were trial etiquette. So when the judge enters and leaves, uh, then the issue will call court rise and all the parties have to stand. You remain standing until the judge has, um, seated themselves. The judge will bow to the courtroom and that must be reciprocated. Uh, if you have to leave the courtroom while the case is ongoing, you bow to the judge, um, before you do so try your best not to turn your back on the judge and also bow before you leave the courtroom as well. And, and obviously formal dress is needed. You have modes of address. District judges are referred to as judge circuit judges as your honor and high court judges or justice of the Supreme Court as my, uh, Lord, uh, or Lady the day of the trial itself. Normally the court sits between 10 and 10 in the morning, 4 p.m. Usual court format is the opening statements from normally, uh, claimants and then followed by, um, the defendant dealing with any preliminary issues. Then you then move on to, um, statements or witnesses of fact before moving on to expert evidence and then it come in through with closing submissions from the defendant and then finally, the claimant. So the claim will start and the claimant will end. In essence, the court can play with that order. So it may be on a complicated liability case that they do with all the witnesses of fact first and then move on to elements of expert evidence. It could be the fact that you have expert evidence on um liability. So you deal with the witnesses of fact, extra evidence on liability and then move on to extra evidence on the quantum side of things, potentially be aware of terminology of examination in chief cross examination and re examination. So examination in chief is when you're question your your own witness initially um with a a civil case, um it can be fairly uh easy going in a sense that literally the witness will be shown their witness statement and ask is this your evidence and this is your signature and this is the date. Um Yes, that stands as their evidence and then that's it the examination in chief and could be done that would tend to be cases where the judge is keen to move the matter through as quickly as possible. We see that on fast track um cases where you may have a couple of witnesses, but the judge may not have time to ensure that case is dealt within one day to allow the other witnesses to simply repeat the evidence within their witness statements may be easier to accept that witness statement as their evidence. And let's move on to cross examination. So, so a lot of cases that witness that uh will take witness tape will stand as the uh evidence in chief. Um Then that, that's fine and move on. Um But what you need to be aware of is the, the rule that a witness cannot be asked, leading questions by their own advocate and to encourage them to relate the story. Um Yeah, leading questions. So you were going at 40 MPH, were you were you were driving at the speed limit where you were in a road traffic accident case? You can't do that in examination in chief. When you're given evidence in chief, leading questions aren't permitted. And that's an important distinction because if you move on to um cross examination, no bar on leading questions, just be aware of that distinction. So no leading questions for the examination in chief. But with cross examination, leading questions are um permitted purpose of cross examination. Uh Cross examination obviously is to extract the favorable evidence for your clients and to discredit the person who is giving um the evidence um cross examine them to make them. So it's less believable than the other evidence in the, in the case. Uh There is one mandatory rule in relation to cross examination and that's that the cross examining advocate must put their own party case to the witness that they are cross examining. So if your own uh witnesses, your own defendant's case is one that your the opponent was speeding. Then of course, that has to be put as part of the cross examination. Uh It's essential that cross examining advocate puts their own plan case to the witness uh as failure to challenge the opponent's evidence implies acceptance of that uh evidence. That's the one mandatory rule in relation to cross examination. We then have the potential for re examination. So that's where an advocate is given the opportunity to ask further questions of their own witness. Um Re examination is strictly limited to matters arising out of the cross examination. So something has come out of the cross examination that needs to be explored further. It's not an opportunity to repeat the case of evidence in chief which came through from the earlier stage. It seems to have come out uh following cross examination, uh you can't introduce new issues at the re examination stage. And so some ambiguity has been left as a result of the cross examination. There's an opportunity to resolve it, try and restore the witness's credibility potentially. Um But the other rule as well in relation to that is exactly the same as with the examination in chief is you can't ask leading questions if you think about it and try to remember the leading questions point. If it's your witness, no leading questions. If your opponents, witness leading questions um are allowed, you also have the possibility of a witness turning hostile. So, um that means that a witness may refuse to answer a question or tell lies. Their evidence may differ significantly from what was in their witness statements. In that instance, uh The party calling, um, the hostile witness may ask the judge to declare them as a hostile witness. The effect of that is that the advocate can now attack the witnesses credibility or cross examine them as if they're a witness for the opposition. Uh the to see any way of limiting any damage this hostile when it's being inflicted on a party's case, an important thing there. Of course, if, if an examination in chief, the witness does become hostile, having that right to declare them as a hostile witness, basically changes the ability uh of your uh examination of that witness. You can then cross examine them right there, your opponent's witness, that's important. So after the trial itself, then fast and intermediate track trials, you usually get a judgment straight after the trial. You will certainly will it in fast track cases. Um The judge may need a short break. Uh Just to, to think about that though, uh in multi track cases, you may get a judgment at the conclusion or you may get what's called a reserve judgment. That's basically where the judge uh needs some time to think about their judgment to make sure it's water tight and it's fair. Um But the would do at the end of the trial is list it for a future date for the handing down of that judgment C ID is you go back to court on a future date and the judge will then give their judgment at that point, it's called handing down um the the judgment and again, that date is usually set after the trial, right? Let's have a look at a multiple choice practice question. Then you act on behalf of the claimant in a road traffic accident, a personal injury claim, there was an independent witness to the accident. He decided to summon his witness to attend the trial. He sent the appropriate number of summonses to court and ask the court to seal and return the summons to you for service. Which of the following best reflects the steps that need to be taken. A conduct money must be offered or sent with the summons when he's served upon the witness service must be affected at least seven days before the trial. B conduct money must be offered or sent with the summons when it is served upon the witness service must be affected at least 14 days before the trial. See conduct money must be offered or sent with the summons when he's served upon the witness service must be affected at least 21 days before the trial. The conduct money must be offered with the summons when, if he's served upon the witness service must be affected at least seven days before the trial. And e conduct money must be sent with the summons when he is served upon the witness service must be affected at least seven days before the trial. A correct answer there. So, um, distinction with, uh, the other, um, answers here. So it's important, conduct money doesn't need to just be sent. It can be offered with the summons. It's one or the other. It's no problem at all. Um And of course, seven days is the uh the relevant period, at least seven days before the trial. So B and C both have the wrong period. They said 14 and 21 days respectively. And then in relation to B and E referred to the fact that conduct money must be offered and conduct money must be sent and it can be uh one or the other in CIC.

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Part 21 - Webinar

00:19:46

Hello, my name is Darren Hackley Green. This is film 21 in relation to the display resolution module four sqe. And this film deals with uh appeals just looking then at the sqe uh assessment criteria, um what you need to note in relation to appeal. So three main elements there, the elements of permission for appeal, destination of appeals. It basically is where the appeal goes to as well as the grounds for uh for appeals timelines. I think times scales for appeal are also important in relation to that um as well, but we'll go through that um shortly. But those are the the three main areas you'd like it to get question on uh on in relation to Scqe. So generally um where a party is unhappy with a final or interim court order, police a cost order, uh a party may be entitled to appeal. So a couple of things just in relation to that, it's important to be aware of uh appeal can come not just in relation to a final order. So you go to a trial and you're not happy with the result and that if you appeal it, it can come as a result of an interim order. So maybe there's been an application hearing, you're not happy with the results of that application. I was just hurt and therefore you can appeal that application also bear in mind as well. It doesn't need to be about the, the core elements of the, the nature of the application or the trial itself. Um So for example, if you have made an application for uh an interim payments and you have failed, and then you have a cost order against you, you may wish to appeal the nature of the cost order but not the nature of the fact that you failed in the application for the interim uh award. So that uh needs to be borne in mind as well. So appeal can come at uh say any stage and not just thinking about the, the final stage, the procedure, what you do in relation to appeal, it's the same and it's the county of the High Court or the court of appeal. That's important, same procedure you follow. There's a different test in relation to permission to appeal and we're taking it through to a second appeal, but we'll, we'll see that uh in a moment, just be aware as well as terminology um changes where you'd have the normal course of litigation of claimants and the defendants. When we're looking at appeal, uh the terminology changes to appellants being the person appealing and respondents being the party against whom the order is being appealed. In essence, the reason for that, of course, uh is to really help with regards to clarification as to who uh is making the appeal and who's responding to that appeal. Because it could be the fact that the claimant um in the action is the one who's appealing, the order could be the defendants, which makes them, of course, then the appellant, so be aware of where um you go to in relation to the nature of uh the appeal. And so when we talk about uh appeal, we talk about lower courts, which is the court whose judgment has been appealed. And we'll talk about appeal court, which is where that appeal has actually gone to where the appeal goes to is determined by who made uh the decision which is being appealed. And that's what you need to be uh mindful of that. So if you're in the county court and it is a district judge who has made um the determination that you wish to appeal, it goes to a circuit judge within the county court if it's in the county court. Uh and it is a circuit judge who has made the decision, it goes to a high court judge in the high court. If it's a master, it goes to a high court judge and the high court itself, if it's a high court judge, it goes off to the court of appeal, just be aware, then that some instances that when you, uh, appealing it doesn't move court. It essen, it just moves judge in essence, I think the court wants to be aware there when you could end up with a multiple choice question around this is the understanding. Maybe you have a county court and district judge decision, you wish to appeal and you need to think. Oh, actually it's district judge, county court doesn't just go off to the high court. It goes to a circuit judge still within the uh within the county court. In order to um appeal, you have to have permission. That's important and you can't just willy nilly appeal anything you like. There has to be permission granted. So two ways you can do that. Um First off is by way of an oral request of the judge once the decision is handed down, so that can be following the, the trial. Um You're not happy with the, the result for whatever reason it might be. And you ask the trial judge for permission to appeal. It could be following the application hearing we talked about it's an interim application hearing. You're not happy with the results or the costs order. And then you ask that judge at the um the application for permission to appeal. So it all happens as part of that same uh that same hearing. So if that judge um denies permission to appeal, um or alternatively, if you do not request uh or really permission to appeal, then you have to uh apply for permission to appeal by way of a paper application. So there's no obligation um to actually request or make an oral request for permission to appeal. You can if you want to um think about, ok. Have I got grounds? Is it commercially viable to do so before you actually put the request in? Ok. And either way there is a second bite of that charity. If the judge at the, the hearing says, no, you've got this opportunity to make his paper application. So if you're gonna take that route and decide to make an application for permission to appeal on paper, uh if you're making the application permission to appeal, you need to file the what's called the N 161 appellants notice along with an application for permission to appeal. So what you need to be mindful of um here is timescales. So um you need to appeal 21 days is the uh uh timescale that so if you are granted permission to appeal, that's fine. You've got 21 days because the permission to appeal has been granted following the trial following the the dream order. However, if you haven't um asked for permission to appeal alternatively, uh you deny permission to appeal. So you need to make an application, it doesn't stop the time running in relation to when you need to file the uh the the appellant's notice. The appeal itself is still 21 days. The difference is if you have permission, it's just the appellant's notice and with other documents we'll see in a moment. However, if you do not have permission, then along with the appellant notice, you need to make an application or permission to appeal um that's sent to the relevant appeal court. So it, it, as we saw earlier, if you're in a county court, it's a district judge decision goes to a circuit judgment in the county court. So the same appeal court uh and again, 21 days is a time uh there is when you make an application for permission to appeal, um generally that is heard on paper. So the first step when you send off uh the appendant notice along with the application for permission to appeal is that a uh judge? So it was a district justice should goes to a circuit judge uh that will be heard on paper. So in essence, it is a little bit like that second lie to the cherry. Uh if you have been denied permission or relief following a request following the the trial on trim uh application hearing, uh then you make the paper application goes for a judge judge, then uh can say yes, that's fine. Then we, we move forward. Permission is granted alternatively. No. And so your permission is denied again. So if permission on a paper application is then denied again, you do have another bite of the cherry, which is you can request uh an oral hearing for that permission to appeal. Um You need to do so within seven days after service of the appeal court's decision which refuses permission. Yeah, that's important. So the order comes back saying no permission refuse seven days and to make that the request for the oral hearing. So that third bite of the cherry in essence just pausing there, by the way, uh I've probably said before, but it's not worth uh it's worthwhile reminding you in relation to timescales. Timescales are important through dispute resolution. Now, you get various different timescales you add to it, you have to adhere to. We saw that with issuing and service and compliance court orders. Uh Just as a reminder, I think it's worthwhile just thinking about um the fact that the timescales generally are divisible by seven. OK. So 7 1421 2856 those are the usual timescales you see throughout district resolution. There are some rare exceptions, but I have drawn those to your attention in, in other, in other films. But I think if you have a multiple choice question, it looks at timescales first port of call. If you're not sure of the answer, disregard, those aren't divisible by seven cos generally. Um They, that's how it would uh it would end up being. So, um the core element when we talk about this permission to appeal and need to be aware of is the test for permission to appeal is different from the grounds of appeal themselves and that's important. Ok. So when you're looking at the first stage, the test for permission, uh one of two grounds there, the appeal has a real prospect of success or there is some of the compelling reason why the appeal uh should be heard. Just be mindful. That's an all. So it's one of those two grounds you don't need both um to be met. Uh an applicant supplier for permission to appeal obviously and without notice, um has a duty to make a full and frank disclosure of all material facts that just comes back to pervasive elements of ethics and conduct. We've seen that and when we looked at applications, the importance of actually your core duty to the court in relation to what the, the application you make and what you state in relation to that to be aware of that test for permission to appeal. That's the, the first stage, that's what you need to get over in order to actually proceed to the next stage, which is the appeal itself just as a reminder with regards to uh appeal, as said before. It's 21 days. Uh time begins to run from the date of the decision which is due to be appealed, just be mindful. We've seen before that sometimes following a uh a larger case, a multi track case generally, then you can have what's called a reserved judgment, which is where following maybe a five day multi chap trial, the judge actually says, well, look, I need some time to consider uh my judgments and actually what uh my decision is going to be. But so therefore, we'll set this down for a future date when my judgment will be handed down. So the idea then is a date is set, uh you turn up at a later date and then the judge will then effectively hand down their judgment and confirm what their judgment is. So as it comes in relation to appeal, the timeline, in relation to appealing comes from the deck, that judgment has been handed down, it doesn't come from the end of the trial because you don't have a judgment. Uh at the end of the trial, the judgment comes at a later stage to be aware of that because if you do have a judgment following the trial, u usually a fast track or intermediate track matter, then that's when the timescale start to run through. So, documents do you need, in order to appeal? Uh you need the appellant's notice, that's an N 161. Again, for rescue, you don't need to know the uh the specific uh form number uh but just need to know it's called an appellant's notice. Uh There is a fee and the fee is basically to determine by way of where the appeals are from. County Court, High Court, small claims um court you can or generally do have a skeleton argument. It's not essential in all cases. Um But generally, you do see skeleton arguments produced in relation to uh appeals. You also need a copy of the sealed order which you intend on appealing. Uh If a pen was, wasn't granted, of course, after the other interim application hearing or the trial, then of course, you need your application for permission to appeal to go with the uh balance notice. Uh and also what you need is the hearing or the trial transcript. So you need the transcript of what was said and uh the judgment itself in relation to the, the matter which is under appeal. So we look to the test for permission to appeal that's different in relation of course to the grounds of appeal. The grounds of appeal is what in essence is being uh appealed itself and what right there is to that, um, for the grounds of appeal, there are two. Ok. So are ground one actually just divide into different uh areas. But uh the first ground of appeal is that the decision was wrong, uh and it was wrong in fact in law or in the exercise of the court's discretion. So three elements really to ground one in relation to the fact it was wrong or the second round is it isn't just because of a serious procedural or other irregularity in the proceedings when you're finding your grounds of appeal. Um the rules state that those grounds should be concise, be aware as well. That matters come a little bit more complex when we're looking at the fact that the appeal itself is unsuccessful. So, um if you have um, maybe been granted permission to appeal or you have to have been granted permission to appeal to go to the appeal hearing, you, then go to the appeal hearing and at the appeal hearing, uh you are unsuccessful but wish to take the matter forward further or you um are successful. But your opponent wishes to appeal that appeal decision. Then it's a second appeal. Uh applications for second appeals go straight to the court of appeal. And there's a separate test there in relation to that, you need permission for a second uh appeal. So like we had permission um for the appeal and then you have the appeal itself permission for a second appeal. It goes to the court of appeal. There's a different test in relation to that you need to be aware of that test is that the appeal would have a real prospect of success and raise an important point of uh principle or practice or there is some of the compelling reason for the court of appeal to hear it. So just be aware of those three grounds there that the first two is an am hey, otherwise you've got that last one is the or OK. So there's either a compelling reason for the court of appeal to hear it or you need to meet the other two criteria being a real prospect of success and it raises important points of principle or practice in relation to, um, costs. The same general principles apply in relation to costs that's at the costs of appeal are payable by the losing party generally. Uh, ah, I'm quite rightly, that sounds a little unfair. So arguably if you've got a judge who has got the law wrong and you wish to appeal that. Um And see if I say you were the claimant of action make for some reason, the judges misunderstood the rules around employer's liability and said there wasn't a duty or whatever it may be and you appeal that and you're successful of uh in relation to that appeal, then the cost of the appeal are borne by your opponent, the respondent and the respondent, it's not their fault. The judge got the uh the, the law wrong. Uh However, they are still on the hook for the costs involved in the appeal if that appeal is successful. And, and the same way that if the uh appellant appeals and is unsuccessful and the respondent has therefore won on the appeal, then the appellant meets the cost of the respondents. Uh That's why it's always important uh in relation to funding elements, you check the funding agreement that's in place and that comes back to elements of your retainer. Does the retainer uh allow the element of appeal. Uh And, and two ways there does the retainer allow you to make the appeal and or alternatively respond to an appeal? If not, you need a new retainer, what about the insurance in place? The after the event insurance premium will be before the events insure? That's uh that's there. Does that cover the nature of being able to appeal or alternatively respond to an appeal? You need to check all these things out before taking the relevant steps because you need that funding in place because of the potential for a cost risk if the appeal, uh, you're making or defending, uh, isn't successful. Well, let's try practice question in this area then to act on behalf of the claimant in a personal injury claim which is pleaded up to a value of �40,000. The matter proceeded to trial before Judge Hudson. The judge heard the evidence and found that the claimant was fundamentally dishonest and dismissed the claim. The claims is of the view that the judge's decision was unjust and wrong in law, which of the following best describes how the claimant should proceed. So a, the claimant should appeal to the high court to be heard by a district judge within 21 days of the date of the judgment B, the claimant should appeal to the county court to be heard by a circuit judging 21 days of the date of judgment C, the claimant should appeal to the high court to be heard by a high court judge within 28 days of the date of judgment. D, the claimant should appeal to the county court to be heard by a circuit judge within 28 days of the date of judgment. D the claimant should appeal to the county court to be heard by a high court judge within 21 days to the date of judgment. Correct answer here is B A claimant should appeal to the penalty court to be heard by a circuit judge within 21 days of the date of judgment. So why are the other answers then not B RT um C and D fairly easy there in relation to those because of the time scale there, it mentions 28 days there, there's other elements which are wrong there as well, but 28 days, you know, straight off the bat is incorrect in relation to that, what does come into play in relation to this question? Should I just move back to is a little bit of an interplay between a couple of elements here? Ok. So, um understanding of course, as to the fact that the district judge has made the decision and then it's made in the county court. Therefore, it goes to a circuit judge in the county court when you're looking at appeal lower court to the appeal court. However, um a little bit of understanding as to how you know that this is a county court decision. Uh Of course, when we're looking at the fact, this is a personal injury claim which has a pleading value of up to �40,000. You know, effectively that that has to be a county court case because it's not 50 K or more 50,000 pounds or above. Uh for a person in your claim means you may have the right to go. Well, you do have the right to issue the case in the high court because it is 40,000 pounds. This case has to have started in the county court. So that's how you determine the fact. This is a county court decision. So you could get something like this in sqe a mixture between elements of knowledge, knowing that the value there means it has to have been a county court decision. Uh Before then you can determine where that appeal goes to and in relation to the other uh elements as well here with um a um bill to the high court. It's not a bill to the high court. Ok. So we know that as a county court decision it stays in the county court cos it's a district judge. Um again, C and D UK both got the 28 days wrong. Um He is correct in relation to county court, to a circuit judge, but of course, c is wrong in relation to high court uh to a high court judge. Uh And e again, county court or high court judge, you got the, the wrong um destination. So the, the appeal uh there. Thank you very much.

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Part 22 - Webinar

00:34:43

Hello, my name is Darren Hackett Green and this is film 22 in relation to the dispute resolution uh series of films. For sqe this film deals with the uh issue of enforcement. So the sqe assessment criteria in relation to what we need to be aware of and understand in relation to enforcement is this, it's basically enforcement of money judgments. Looking at a thing called oral examination. Methods of enforcement is very generic. Um So it's various methods of enforcement there. Uh procedure and mechanisms for affecting valid enforcements uh in other jurisdictions that looks at obviously judgments from foreign courts here to be enforced and obviously judgments of our courts be enforced in different um jurisdictions. So if you look at uh enforcement in uh general terms, responsibility in relation to enforcement and the idea behind um enforcement is that you have a resorting judgment order for a monetary amount that could be as a result of an application for default judgment because the defendant has failed to file a nod of service or a defense within a requisite period of time or alternatively could be after a trial. You've been through all the actions of litigation got to try and result in your eventual judgments uh in your favor to them. That judgment isn't paid. You need to then go on and have that judgment enforced to force your opponent with the claimant or a defendant who has lost to pay. At the, the judgment terminology utilize just change a little bit. Uh, judgment creditor is the one whose benefit the judgment is for. And the judgment debtor obviously the one who owes um the, the judgment amount, the judgment takes um effects for the day it's given unless specified. Uh otherwise, in a court order, generally, you will have a period of 14 days, at least 14 days within which to settle um a judgment order. That's when we specify within the order that can be extended. But if it's silence in relation to it, it it takes effect on the day that it is given. Uh basically a judgment creditor takes steps to enforce payments of um uh judgments via enforcement methods is entitled to the costs of doing so. So if there are costs involved in enforcing the judgments, you can recover those as a judgment creditor. So first steps, you need to think about two elements here in relation to how you enforce you, then just crack on um with enforcement because in lots of circumstances, you don't know whether the judgment debtor has got assets and what those assets are. And also um what that means in relation to the best method or type of enforcement to undertake, um, investigations may reveal that they own their own home. So you think about charging order, it may reveal that they've got a substantial amount of money resting in a bank account. So the third party order is appropriate to try and get into those monies. They're employed on a regular, uh, on a regular wage. There may be, uh, a, a, an earnings order, uh, at assessment of earnings order, the most appropriate method of enforcement, lots of things to think about. So the first point of call really is thinking about how to uh enforce that order. What's the best method? Two ways of doing that to uh, find that information via enquiry agents. It's probably the simplest, cheapest and easiest way to uh investigate assets from uh the judgment debtor instruction of the inquiry agent means that they'll investigate things like whether the uh, jun debtors around home, that the posit accounts vehicles available in relation to other valuable chats may have a boat or a caravan or whatever it may be. And once you've got that information, you can then make an informed decision as to the type of enforcement you undertake based on the inquiry agents response. So that's probably the cheapest, quickest and easiest method of obtaining information. There's a more formal method to um obtain information, which is basically where you go to the judgment debt and force them to give you the information you need to consider methods of enforcement. So orders to obtain information, it's not a method of enforcement itself. It's a method of obtaining information to consider, uh, enforcement. You do that. Uh, either instead of using enquiry agents or alternative, maybe you've used enquiry agents and that hasn't resulted in anything successful. Maybe they've not been able to find out much information or any information. So therefore, your next step is, well, if we still don't know how best to enforce, let's go for an order to obtain that information. So then what happens there? Judgment creditor applies to the court and the judgment debtor to attend court to provide information about their means and assets is forcing the judgment debtor to go to um to go to court court will issue uh the order for the judgment debtor to attend and also to produce any documents requested uh in relation to the applications that could be require uh details in relation to employment. Maybe if you wage sips, you get the details about the sums that the judgment debtor is paid details of their employer or maybe potentially looking at elements of uh ownership of home or uh other chatter or things like that. Uh The order that you get um for this hearing for this judgment debtor to attend court has to be served personally upon the judgment debtor. So therefore, that's why inquiry agents the cheapest way forward. Because the order to obtain information apart from the application you pay for, apart from the need for a hearing, you also need to obviously pay a processor to serve that document upon the judgment debtor personally and to add the instructor injury. Um as a process involved in the order to obtain information, the judgment debtor is entitled to ask the judgment creditor to pay their travel expenses. Um Sounds a bit like a mickey tape, doesn't it? In essence, you are only asking or getting this order to obtain information to find out how to enforce a judgment that the judgment debtor isn't paying. And they say in order to find out that information, you need to pay my way to get me to the court. Um The, the reason thought process behind that it avoids the judgment debt and make any excuse, they couldn't afford their travel expenses to go to court and that's why they couldn't attend at the hearing. Uh In question, the judgment debtor is then questioned on oath in relation to their incomes, outgoings their assets. Um question K is carried out by one of two different people, either by a court officer or by the judge. And if it's a court officer, then the judgment creditor may attend. They don't have to, if it's a judge who's involved in that, then the judgment uh creditor must attend and generally they will then carry out the questioning with the judge being present at the uh at the time. So be aware of the difference there. When you've got a court officer doing the questioning where you don't need to go, that will save costs. If you've got a judge involved, then of course you have to attend. And because of the nature of the fact is personal service. If the judgment debtor then fails to attend the court, uh, the judgment issue, what's called a suspended committal order with its contempt of court against the judgment debtor until they comply with the order. So it's committal proceedings in advance of that. So that's um investigations in relation to um the, the situation with regard to a uh a judgment better and how best to think about enforcing options open to the judgment debtor is this what's called a stay of execution? So this is where the judgment debtor wants to stop the judgment of order being enforced. They do so with this uh application for a stay of execution in order to be successful. Judgment, debtor gives evidence of their means and they uh show that they are unable to pay the judgment debt in one lump sum and it's not expedient to enforce the order. If that's successful on the application of the judgment debtor, the court will grant a stay of execution which is a pause on the enforcement not allowing the, the judgment creditor to enforce further whilst and provided the judgment debtor pays off the debt in installments. Now, um this, you'd think, well, that's a little bit um why would you do that when you could have actually dealt with this prior to the enforcement proceedings rather than go for a formal application and stay of execution. So opens the judgment debt and we've got this judgment debt and they can't afford to pay it. Of course, they can the judgment creditor and they say, well, look, I can't afford it in, in full, have that 500 quid per month and then do it on, on that basis. Judgment and creditor may think. No, no, thank you. I'd just enforce it straight off the bat. So then what can happen then is your judgment debtor gets another um bit to the cherry and says, by getting the court to force the judgment creditor's hand and say no, actually 500 quid a month, that's what this judgment debtor can enforce and that's um reasonable to order that that tends to be when a stay of execution is utilized, but you wouldn't normally tend to have a judgment creditor attempting a stay of execution. Um unless of course they've attempted uh negotiations with the judgment creditor prior um to do so. It, it is an opportunity though. It is an option for them either way though, be aware of interest. So post judgment interest may continue to accrue and that depends though on the judgment some or how the uh what, how interest is calculated. So whether the judgment is below 5000 pounds, it doesn't um carry uh interest at all unless of course, it debt arises from either a contractual dispute and the contract, the clause of the contract provides forced uh interest as a result of that clause or the ju judgment is a debt which attracts interest under the late payments of commercial debts Act. I see it on when it would attract interest when it's below 5000 pounds. Judgments are 5000 pounds or above attract interest at 8% per annum. So that interest accrues on that judgment as it's moving forward. So looking at enforcement, you're also looking at the fact there's additional interest on that judgment. And also, of course, the costs of enforcement can be claimed as well as we saw earlier. So payments of the judgment debt is stayed so paused. Uh when a judgment creditor attempts enforcement by one of three methods of enforcement, execution against goods, we'll look at that in a bit more detail in a moment. We'll look at all of these in a bit more detail in a moment. Um Attachment of earnings orders were third party debt orders as a stay on the uh uh judgment debt, uh enforcement. If the method of enforcement results in a payment from one of those three methods, no interest will run during the period of the state. However, if the method of enforcement was ineffective, then interest would have continued to run throughout that period. So we have a situation where you apply for an attachment of earnings order. An attachment of earnings order is for a sum of money to be deducted from the claims wage at source before it even hits his bank account from his employer. Now, if you've made an application for that and we've got this stake, if the application for that order is successful, then any interest that's accrued from the date of the application through can't recover it because the application has been successful. If it's unsuccessful, then of course, all the interest that would have accrued during that period, then you can claim I mentioned this earlier about taking control of goods. That's the phrase taking control of goods. You would know it better as sending in the bailiffs in essence, that's what it is sending these heavy weights to try and take the uh goods off the judgment, better flog them at an auction or to recoup release in order to settle the judgment debt, the type of enforcement in relation to how you do it with regards to taking control of goods. Um depends upon the value of the, the sum outstanding for the judgment debt. Uh If it's 600 pounds or less than the debt must be enforced in a county court. If it's between 600 under 5000 pounds, it can be enforced in the county or the high court. If 5000 pounds or more, it has to be enforced in the high court. Just be aware of those limits. Um, being aware of that. I think the, the key one there is when you've got a debt in excess of 500 pounds, sorry, 505,000 pounds or more, you have to enforce the taking control of goods in the high court. And that's worthwhile. Being aware, that could easily come up with a multiple choice question in relation to where you uh take out your, uh, your method of enforcement in relation to the, the thing which gives you the ability to take control of goods. The wording is different depending on whether it's a high court uh application or if it's a county court application in the high court, it's a writ of control in the county court, it's a warrant of control. And once that is issued, that is a pa uh passed in the county court to the bailiff or in the high court to the high court enforcement officer. And they will then, um, seek to enforce those, uh, that order that judgment debt. So what's the procedure uh involved with the agent? Either the bail for the high court enforcement agent will secure the goods on the premises on which they find them, secure them on a highway. So clamp in a vehicle, if it's on a road, remove them and secure them elsewhere, the agent's got the power to enter premises to search for and take control of goods provided, they're at a place where they better carries on business and not before 6 a.m. or after nine pm in the evening. The idea is that when these goods, uh this inventory is taken, the judgment be, is given an inventory of those goods soon as practicable. So they're aware of what has been taken control of. Um the agent must then sell the goods at least seven clear days after the date upon which they were removed. Uh That changes if the goods are unsellable after that period of time, for arguments sake. If you're taking um, goods which have a short uh shelf life, maybe, for example, it's very expensive fish from a fish market. If you wait seven days, it's gonna be rotten. So unsellable uh perishable goods. In other words, then you can sell them uh with a quicker uh period of time in those seven clear days. Uh and that would have to be then generally the day after they're removed. Um The agent has to give the judgment better at least seven clear days. Notice of the time place and date of the sale or one a clear day. If it's perishable goods where the goods will then be sold via an auction process, the goods will be sold at the best um, price which can be reasonably obtained at a public auction. And the proceeds of that sale are then used to discharge the debt plus the enforcement costs as well. So all rolled into one, you need to be aware of items that you cannot seize as part of this writ or this warrant of control, the items you can't seize items or equipment necessary for use personally by the judgment better or the judgment better as employment or study up to a value of �1350. So obviously laptops and things like that up to that value which may be needed for their work, self employed or their studies. So, charters that are reasonably required to satisfy basic domestic needs, washing machine, fridge, uh arguing, microwave oven, things like that, uh, satisfied basic domestic needs. Um, you can't take dogs, uh, or pets, whether they're assistant pets or domestic pets and, and flog those and not, let's say anything which is living, um, don't take vehicles with disabled badges or British Medical Association badges, B ma badges and you can't take emergency, um, vehicles either. Those are things you, you're prevented from taking control of. So how can a judgment debtor react and respond to this, taking control of goods? What they can do is take a sensible step and enter into what's called a controlled goods agreement. This is really, um, applicable in, say for argument's sake. You've got the defendant judgment debtor who, uh, who owns a business, say it's a bakery. Um, and the uh high court enforcement officer or the bailiff Commons in takes control of the bow making machines or whatever it may be. The judgment debtor says, well, look, um you're taking my machines. Yes, you can sell them at auction, but it means I can't make any money. So if you don't cover the uh the whole of the debt, I've got no money to pay the balance of the debt. That's not in the judgment creditors interests. So therefore, what we'd like to enter into is what's called a controlled goods agreement. So that's an agreement with the judgment debtor permitted to retain uh custody of their goods. So that example, the uh the dough making machines in, in the bakery acknowledges that the agency is taking control of them. So they don't have the ownership of them and agrees not to remove the agent, agrees not to remove or dispose of them before the debt is paid. And what happens then is the driven debtor will enter into an agreement um for a payment of a certain amount. Um oo over maybe maybe a year, maybe splitting it every month, a certain amount pay until the judgment debt is satisfied. Recognizing that if they breach that agreement, then the agent will come straight in. Oh, those goods are off to uh off to auction. So some way, it's a bit like a stay of execution, I suppose. Um say for the fact that um it's one step further in a sense that they're actually the possession is taken of those goods. And the judgment debtor recognizes that and the risk involved in relation to that, but it's a way of them continuing to be able to manage their business without sort of um that it being um put out of business by the actions of sale of those items. By uh by auction, we have third party debt orders as well. It's a method of enforcement which is applied with the judgment debtor is owed money by another person that usually can be a bank where the account is in credit. So therefore you go in and actually take the amount from the some which are held in credit based on knowledge of the the the parties. It can be where parties are in business together. Maybe the judgment creditor is aware that the judgment debtor has done a lot of work for uh another company and that company owes the judgment debtor a large sum of money. It could be the fact that you can go direct in that sense too, that third party to stop them paying the judgment debt and pay you instead the sums they owe the judgment debtor. Um Judgment creditor obtains in order the third party pays the debt owing to the judgment debtor to them direct and the application is made without notice. The judge rates an interim order. Maybe that notice and enlist the matter for a hearing to consider whether to make a final order in relation to the third party debt order. Uh Interim order is in served from the third party in questions to the bank or this other business. And also on the judgment debtor, the third party is bound by that order on the service of it. That's a third party uh debt order. We also have um charging orders. Um how they work. The charging order itself is not a method of enforcement. It is a method of securing um the debt. In question, the method of enforcement following a charging order is an order for sale which we we'll look at uh in a moment. Those are charging orders where uh the judgment debtor has an interest in land. Uh The charge obtained uh acts as an equitable mortgage um can be obtained where the judgment debtor is a sole owner or a joint owner of the property in question. Um Whereas a joint ownership, the charge is only against the judgment debtors beneficial interest and not against the other party's beneficial interest. Um I say charge order acts as security, not actually a means of payment or settlement of the debt. It's not really a means of enforcement at this stage. Um In the high court of charging order can only be made for some exceeding 5000 pounds. We've got that 5000 pounds limit there. Save for look at the wording has to exceed 5000 pounds to be uh for charging order in the high court, whether in looking at these taking control of goods, um it has to be 5000 pounds or more uh in the counting court, uh the jurisdiction to make a charging order does not exceed 30,000 pounds. So if you have a claim worth �50,000 and it's in the county court cos that's where you obtained your uh default judgment or whatever it may be, you want to enforce by way of a charging order, you can't do that in the county court. What you need to do, of course is transfer the matter to the high court and then uh go for a transfer order and then you can like for your charging order we've seen before in another, in another film uh about how you can have transfer between high courts and county courts. Enforcement is a very common method of that. We're seeing a moment in relation to attachment of earnings orders. They can only be obtained in the county court. So if you've got a high court case and you have to move the matter down via a transfer order to the county court in order to enforce by way of an attachment of the earnings order. So what's the procedure with charging orders? So you'd make it without notice application. You then as you get with a lot of these things like third party debt order, you get a an interim uh charging order granted or an order granted that creates an equitable charge on land which can be registered orders then served on the judgment better. A final hearing is then set or a final order will be made once the judgment creditor has a charge on the judgment debtors land that can then be enforced by sale. So that's the method of enforcement there following the charging order. You don't have to, um, you can actually leave the charging order there forever and a day and just think, well, eventually in 30 years time when that property comes up for sale, we're gonna um reap the benefits of payments of that from uh any equity in the property. That's how it works, the charge so that the, those are the charge on the property, get paid first prior to the, the benefit of the, the uh balance of the proceeds being sent to those who own the property. Um But if you are going to enforce um by sale, you need to issue a part eight claim, an order for sale uh can be made even if the pro uh property is on jointly. So even though you've only got uh a charge over the beneficial interest over the one party's judgment debtor and the p property may be jointly owned, you can still get an order for sale, ok? Even if there's only uh one of those parties is a judgment debtor, judgment of earnings. Uh That method of enforcement is useful. The debtor is in regular employment. It's also useful tactically cos a lot of the time threatening the judgment debtor that you're gonna go direct to their employer to ask for a sum of money to be taken from their wages, direct at source. Um prior to being paid to them can be a sort of embarrassment for a judgment debtor. So a lot of the time, the threat of attachment of the earnings order is actually enough to cause a judgment better to start with negotiating maybe a regular payment or to settle the debt in full. The idea is the order um compels the employer to make regular deductions from the judgment um debtor's earnings and pay them uh into court. So then for the benefit of settlement of the debt, you know, it's only available against an individual attachment of earnings order. It's only available in county court as I said earlier. So if you've got a case in the high court, you need to transfer it down to the county court in order to go from attachment of earnings order at the hearing, the judge will make an order if they're satisfied the judgment better have sufficient income, they look at what in essence they, they're able to live on as a double uh twofold test there in relation to the sum to be um permitted it based on examination that judgment debtors wage their earnings, their liabilities, et cetera, et cetera. If the judgment debtor um ceases to be employed by the employer, uh they have to let you note. So must the employer as well? If for some reason they cease to be employed by them. Procedure needs to be repeated every time. So just cos you've got one order for attachment of earnings order, it doesn't move to different employers. There's a new employer, you need to go to that new employer and get attachment of earnings order from them. That's why it's useful. A lot of time when we're looking at orders for information or inquiry agents. If you, if you've got a judgment debtor who's been in and out of employment quite a bit with different employers, you have to think well, by the time you've got one attachment to learning or they may have changed jobs again. So that would be a waste of time doing. That's why these inquiries are always worthwhile doing to think about the best method of enforcement um insolvency. So the judgment creditor can apply uh for bankruptcy or why they're not proceedings bankruptcy. So it's an individual why they're not proceedings when it's a company. Um depending on the debt that's owed. Uh and the sums involved uh debt must be at least 5000 pounds in the case of an individual and more than 750 pounds. In the case of a company process is started by serving what's called a statutory demand. Judgment debtor then has 21 days which to satisfy that judgment, they can challenge it on a limited number of grounds within 18 days as well. Um If then it is not um paid, oops. Um then you uh file a bankruptcy petition, either judgment debtors, local county court or the Chancery division of the, of the High Court. In the case of companies, ultimately, then re uh it ends up with the judgment debtors assets being realized and distributed to creditors. And there's an order in within which the assets are disputed in the secure, secure creditors, unsecured credit. There's a whole list of them. You won't need to know the specifics for uh s care, I don't think, but in essence, it tends split out between them on that basis. Right? So then we're looking at enforcement now of different types of judgments when looking at jurisdictional elements. So first, if we're looking at enforcement within our jurisdiction that of England and Wales in relation to judgments of foreign courts, so that's if you've been instructed by say, a company in France who has a judgment in France as against a company which is based in England and Wales, that's a thought process there. So the judgment creditor applies to register the judgment in the high court and can do so with that notice. So this is where you effectively are acting on behalf of these. Um This French refer this is or who it may be in order to actually help enforce the judgment within um our courts application for registration um must be supported by written evidence, exhibits the judgments or uh or uh sorry, a verified a certified or authenticated copy of it, whether the judgment isn't in English, which is a lot of the time the the case and then you have to have it translated uh appropriately um written evidence in support of the application has to state the details in relation to the judgment, creditor name, address, and the judgment debtor name uh address. And of course, the grounds on which they're entitled to enforce that judgment in the case of a monetary judgment, the amount of respect of which is outstanding. So which is unsatisfied assuming some of it has been satisfied about the totality of the, the sum involved. And if there's a sum of interest to be applied to that, the calculations involved in relation to that interest are some to date it further interest accrued since the date of judgment and all those um elements there, an order granting permission to register a judgment which has got a registration order must then be drawn up by the judgment creditor and served on the judgment debtor by delivering to it and serving it personally by way of any of the methods uh specified by where its statute and of the companies act. And we've seen that in relation if we looked at service in an earlier film uh or in any such manner, other such of manners, the court may direct. So what we're looking at there is the the need when you're looking at enforcing a judgment of another court in a different jurisdiction within England and Wales, you need this registration, you need to register um the, the judgments to be order then to begin the, the methods of enforcement. And of course, the methods of enforcement are applied by a firm registered, of course, uh who um practices in England and Wales. That's how it works. You're a foreign um firm, foreign lawyers who wish to force in our jurisdiction. They use us uh lawyers within this jurisdiction to do so. We have a, a judgment against a defendant in a different jurisdiction. We utilize agent solicitors within that jurisdiction to uh proceed with enforcement. So flipping back the other way, then if we're wanting to enforce any foreign um country judgments of our court, High Court or county court, um what do we need to do? We apply for a certified copy of that judgment application again made without notice must be supported by written evidence. And then with that, we need to send copies of the claim form, any statements of case evidence and it's served on the defendant as well. So making sure that the service has been affected appropriately outside of the jurisdiction. Uh written evidence must identify the grounds on which the judgment was obtained. But state whether the defendant objected to juris uh to jurisdiction. If so the grounds of any such of objection to show the judgment's been served as well, it's not as the proceedings themselves state whether an appeal has been made. And so whether if not, whether the time to do so has passed, it's important that because before you proceed to enforcement, think about that time having passed, you know that there's no risk that the al you're gonna go off and enforced while appeal proceedings are are being conducted, state the amount of the judgment remains unsatisfied and also then state the position in relation to interest recoverable how that is calculated. So, quite similar steps in um in relation to this, as you would see when you are trying to enforce a judgment from a foreign court within our jurisdiction um in relation to uh eu member states. Then what happens is a European enforcement order certificate is produced regards for enforcement under domestic law of member states may differ in the law of the relevant member states. But there's generally uh there's common ground that the English judgment should not conflict with the law of the member state. Uh in essence you enforce via one of the methods of enforcement permitted by that member state. That's not for you to look into or, or deal with because of course, we are lawyers within England and Wales, we can't hop off to France and start trying to enforce them to the French courts. See Factor Wert the agents wert the French law. If that's the example of French law to um uh confirm the methods of enforcement and how to do it. Give us advice in relation to that. So we say yes, take that method. Although it's costly, that's the best method of enforcement, et cetera, et cetera, you have to be aware as well. Sometimes the country where the judgment is going to be enforced may require more than the registration, uh certification of the judgment and all the European enforcement order certificates. But then you'll get guidance from the country in question as to what more is needed and what steps you have to take with, to enforce within their jurisdiction. What about uh enforcement of judgments of the United Kingdom in other parts of the United Kingdom? So you've got a judgment in England and Wales, but the defendant is in Scotland. Again, similar sort of process need to apply for a certificate of judgment. Um Again, the same way apply for a certificate I find in that court where the judgment is given and evidence from with the written evidence, the name and address of judgment, creditor and judgment debtor sums payable or some unsatisfied interest if it's accrued in the calculation behind that and the same way as well, whether um any appeal has been made or if the date for appeal has passed. So, again, very similar processes involved when we're trying to enforce um in a different jurisdiction in the United Kingdom, a judgment from England and Wales, right. So look at question in relation to this area, then that's on behalf of the claimant who secured a judgment against the defendant for the sum of 60,000 pounds. The defendant is an individual and the judgment order was following an application for default judgments as the defendant did not respond to the claimant's claim form and particular as a claim once served, the claim is keen to enforce the judgment be as soon as possible but has little information about the defendants or their assets. Note the spelling error, by the way there, judgment of course is only the one E. So it's not judge only Judg and the m uh Clement is keen to keep costs to a minimum at this early stage, which of the following reflects the best step to take in this claim. A the claimant should initially attempt enforcement by taking control of goods. This action must be brought in the high court as the debt is in excess of 5000 pounds. B the claimant should instruct an inquiry agent in order to find out what assets the defendant has so that the most cost effective method of enforcement can be considered c the claimant should make an application for an order to obtain information from the defendant. So the most cost effective method of enforcement can be considered d the claimant should initially attempt enforcement by taking control of goods. This action must be brought in the county court as the debt is in excess of 5000 pounds. E the claimant should apply for a stay of execution. Whilst investigations in relation to the defendant's assets are undertaken, correct answer and speak on this. What we so payment should instruct an inquiry agent in order to find out what assets the defendant has so that the most cost effective method of enforcement can be considered. That's the best way forward. If you crack on with uh, the other one who taking control of goods, you don't know the situation in relation to the judgment debtor, you don't know what assets they may have. And the best method of enforcement is guaranteed big and the best and cheapest and quickest method of finding out what the judgment debtor may have by way of their assets is by way of an inquiry agents. Uh Other option you've got here has been mentioned in relation um to see in order to obtain information that is an option. Uh It's open to not the single best answer because the question mentioned about, you know, keen to move the metaphor is cheap. It's possible orders to obtain information comes at an additional cost. Of course, we need to serve the order person. It requires a hearing an application and it's cheaper and quicker to actually go via an inquiry agent. So that's why the B is the um the single best answer A uh the court should initially attempt enforcement by taking control of good. So again, not a single best answer that it is an option um because it's better to find out what assets the uh, defendant actually has the judgment debtor has. Um, it also states action must be brought in the high court as the debt is in excess of 5000 pounds. Don't forget it's 5000 pounds or above. Not in excess of. Uh, the other answer is indeed, a claimant should initially attempt enforcement by taking control of goods. Uh, action must be brought in the county court as a debt in excess of 5000 pounds. That's wrong. Ok. So when it's 5000 pounds, you're above, it's High court only for taking control of goods. But as we've seen, single best answer is uh inquiry agents and e the claimant should apply for state of execution whilst investigations in relation to defendant's assets are undertaken, that's incorrect. The state of execution is a process undertaken by the judgment debtor to pause any enforcement action. It's not undertaken by the, the judgment um creditor in relation to enforcement proceedings. Thank you very much.

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Part 23 - Webinar

00:31:17

Hi, my name's Darren Hackley Green. And this is film 23 the final film in the dispute resolution series of films. This film, uh, looks at Epics and Conduct, uh, in dispute resolution. The important thing to be aware of that. I've recorded separate films in relation to ethics and conduct. Um, in sales. I'm looking at the various rules. Yes, yesterday or a code of conduct. What I've tried to focus on here are the sort of relevant rules that can come up uh, in relation to dispute resolution as a module because don't forget ethics is, um, pervasive uh in relation to sqe so it could come up in FLK one or K two in any of the subject areas that you're tested on. Um, it's probably very common and more common, I think in dispute resolutions that have ethical who conduct questions because the nature of some of the roles, certainly the, uh, because of your involvement uh with the, the court as well. So what I've tried to do in this film is sort of focus on, um, sort of the key roles and the more important roles uh in relation to the S A code of conduct, both principles and the rules themselves. And sort of draw out some examples, things that we may have seen throughout the other films and how that ties in with sort of an ethical uh approach to a question. So let's focus on them first, the uh the principles um you have. So I've highlighted three of them here. Uh acting with honesty, acting with integrity and acting in the client's interests have been sort of really the core ones I feel um, for resolution may become, uh, I irrelevant. So you think about a specific example when uh, these uh, principles could apply in decisions that you make, we're looking at act in the client's best interests. If we had a situation, say for argument's sake where you are faced with uh, an application or alternatively, so you act for the defendant to the personal injury case. And the claimant, um, says, uh, I would like an interim payment, uh, to, um, because I'm not able to work at the moment due to the nature of my injuries, I can't afford my bills, et cetera, et cetera. So you request a general interim payment from the, um, from the defendant defendants. Uh, of course, during interim payments aren't obligatory, they have their discretionary uh, award then could say no and full stop or of course, could, could offer an interim payment at the sum request or not thinking about acting in your class best interests. If you act on behalf of the defendants. If you say no, uh, you're not having any true payments. And then the next step of course is for the claimant to um, make an application being inter payments. If they've been forced to make an application and if they're successful in making that application, of course, costs, follow the event. So if they're successful, then the loser of the defendant will pay the winner's cost, the claimant's costs of that application. What it means is by saying no, in what may have been a reasonable request, are you acting for the defendant have increased costs unnecessarily? But you've now got an additional cost to pay, which is the cost of the application, which could involve the use of co lots of work drafting the application, the application issue fee uh alone uh on notice at present times is 303 pounds. So a lot of additional costs is that acting in your client's best interest? When quite frankly, that application was due, it was bound to succeed in like the nature of the request that was made always need to think about um essence uh elements like that. If you ha being faced with an application, do you agree the application is it in act in your client's best interest to object and oppose the application? Another example of that is where you have as the claimants issues of court proceedings. The defendant hasn't responded in time at or it's also, you've entered default judgments and the defendant approaches you saying, look, um, we missed it. Sorry. We'd like to set aside default judgments. You know, is that ok? We've got a viable defense to the action if you say no, we don't agree to the, uh, default judgment being set aside the next steps. Of course, is that the defendant makes an application, they have to show they've got real prospects, uh, in relation to that defense, which a lot of the time may be the case just a bit. They've missed a date. That's why there's been this default judgment entered. But if we think about the circumstances there, so default judgments entered and then if it meets the application, we then have a hearing listed in light of the time rules of the judiciary at the moment, we have three and four months. Hence, depending on the nature of the court you're in, you go to the application, defendant is successful and what happens is it's rewound exactly back to the point. It was before the default judgment was entered some five months ago and you're back to, to that position. But what you've done is you've had five months worth of dead time, um, where the case couldn't progress because he's got this net of this application which is pending. And also you've got the additional risk of the costs involved because even though yes, the default judgment being entered was the fault of the defendant because they missed the timeline. Always think about your opposition to that. If your opposition to that is unreasonable, it may be that you run the risks of having to pay the cost, some or all of the nature of the defendant's application always bear that in mind. And then in that situation, both the cost risk and also the delay in the progression of the claim claim when you know that effectively that application will succeed. Um That's not in your client's best interest. So we think that with the nature of the application um being made, will that application succeed? If the application is banned to succeed? In light of the fact that the uh other party satisfies all the relevant criteria for that application. Then think about whether you agree. Uh If you can agree in relation to the application in question, let's say if you can agree, of course, bear in mind relief from sanctions, applications where of course, you can only express a decision not to oppose or oppose. You can't agree is a matter between the party in breach and the course of the court in relation to um rule one, then uh maintaining trust and acting fairly a couple of um rules I think, which are really important um here for purposes of dispute resolution. So firstly, 1.2 you do not abuse your position by taking unfair advantage of clients or others. The core element here I think is relevant is when you're dealing with a litigant in person, you dealing with a lip, it's important litigants in person. As I said, in previous films, individuals who have no legal knowledge, trying to deal with the court process themselves as against someone like you who has got legal knowledge and experience in that field. And they're at a subsequent, uh, a substantial disadvantage, aren't they? And of course, the risk is that they can be taken advantage of because they don't have um the knowledge that you have and the things that you can do, you can take advantage of that position. You can't do that. I said before in a previous film about how you're a litigant in person, the ability to explain to them that if you don't do Xy and Z, then we are, for example, you don't follow your defense or not the service within this timescale, then we're going to apply an ent into default judgment. And what that means is you won't be able to defend the matter going forward. That's the consequence of the, of your, your actions by failing to take this step. If you don't know how to file a defense, have a look at the response. But here's the form you're completing nat uh detailing the nature of your defense. If for argument's sake, the litigants in person um comes back and they, um they draft a defense and send you the defense, but the defense doesn't present any sort of viable um, defense to the claim that's been brought. Do you think? Well, I'm gonna go for an application for summary judgments because there's no real prospect of, of a success you sending that I'm gonna strike out that defense litigants in person. Just think about the steps involved. Could it be better that you ask questions? And by way of a request for further information, the rule 18, do you explore the nature of the elements of that defense? And they have just drafted it badly? Cos they don't, they don't know the what to include within that defense itself. So it's important then that you explore those issues before you rush straight into application of strikeout or summary judgment because of some procedural irregularity or because it doesn't reveal any real process of success. All that's gonna happen is if you did rush into system, judge your application, then it'll go to a hearing. The judge will take sympathy with the litigant in person. We'll look at matters we'll explore with the litigant in person. Have they actually got uh a defense of this action? Just they just haven't pleaded it properly and will then give them guidance an opportunity to then and then the defense rep plead in relation to that. Ok. So just bear in mind that when it comes to litigants in person, there's always that risk of uh abusing your position by taking unfair advantage, do not do that because the risk is of course, that although you may think you're gaining a tactical advantage and you're acting in your client's best interest. The uh concern is you're taking unfair advantage and that's a more significant breach. One point before you do not mislead or attempt to mislead your clients to court or others, either by your own acts or omissions or alone or being complicit in the acts or omissions of others important. And that links in now to, to rule two as well. Elements of misleading uh and being aware, of course, by doing so by omission or by act, if you've got a position where um your opponent is making an application and making submissions in relation to um that application. And one of the um issues they're raising is me, they're trying to relay up uh rely upon um some part of the, the rules and they, they're misquoting it and then, although they're not explaining the fact, there's a further rule that actually would assist um their application that they're just not referring to. So they're not fly doing the best job for their own clients, the warriors. Of course, if you just sit back and let them um do that, you may be misleading by a mission. They reported all matters come before the court. At the same time, we'll look at that in relation to uh paragraph um two in R two in a moment. It's important also, of course, don't mislead your clients as well. We'll see later on the importance um of when a mistake has been made, you fess up to your client, tell your client that this has happened, really sorry. This is how we're going to rectify it. You don't mislead by a, by, you know, not telling them or a mission by just sort of not referring to the fact that look, we didn't do this. We're sorry, as opposed to look, this has happened anyway, we're gonna sort it this way. It's a fair, you don't miss the buy emission. It's important. You are saying to the client this has occurred. It was our error. It was our mistake. We will rectify this and sort this out at our cost in essence, paragraph two, as you can see while the highlighted green here is very important in relation um to dispute resolution. So going through those elements in turn 2.2 you do not seek to influence a substance of evidence, including generating false evidence or persuading witnesses to change their evidence. It seems fairly obvious, doesn't it really? It's important when you're speaking to witnesses. Um but you don't see to persuade them to change their evidence. Don't forget we're not before at the old adage which is, there's no property in a witness. You may have one witness to an accident, um who um is independent and has been spoken to by your opponents and then you also want to speak to them because you also want to find out what their evidence is and maybe drafted a witness statement from them as well. It's important. Of course, you don't persuade them. You know, you're sure you saw the defendant indicating you're completely sure he was sunny. Someone's in your eyes, et cetera, et cetera. Don't do that. And the greater risk there, of course is if you do otherwise does change their evidence and there's a, a risk then that you breach the sr a code of conduct. So the defendant will raise questions about hang on. They said this to us, but suddenly you speak to them and now they change their evidence. We've got concerns about raw 2.2 in your compliance or not with the same uh rule two, but three, you do not provide or offer any benefits or witness dependent upon the nature of their evidence or the outcome of the case. We've looked, of course, at the fact that you, if you've got a witness, you want to compel them to go to court. You, you should witness summons and serve that upon them along with that you tender conduct money or offer conduct money which increases travel expenses and loss of time in going to the trial. That's the extent of the, um, the offer to them. You can't say, look, um, you go to trial for us, we'll give you 100 quid. Thanks very much because that is obviously offering uh a nature of a payment in advance of their uh evidence being given or eternity. Saying look, if we're successful, we're b you 500 quid, complete breach of rule 2.3. Just be aware the limitation in relation to the, the rules of compelling the witness to go uh limitation. About course, you pay that out of pocket expenses and of course, our travel expenses, that's the maximum that you can offer to pay or witness in relation to the benefit of their evidence. 2.4 you only make assertions or put forward statements, representations or submissions to the court or others, which are properly arguable. It's relevant with regards to, I suppose your client's instructions, this in relation to say an application. So if your client says, look, I'd like uh an interim payment. Um please, um and I fulfill the criteria of XY and Z. I need the interim payment to manage my funds, et cetera, et cetera for argument's sake. If you do not fulfill all the requisite criteria in relation to that and said, maybe if your client isn't suffering um financially because they have substantial savings, but they just don't want to dip into those savings or whatever it may be. Um You need to bear in mind, you know, despite your client's instructions, you need to still be able to put forward those statements and they need to be properly arguable. If you've got a weak argument to justify an interim payments or a weak argument to um argue against setting aside default judgment, you can't say so. You've got default judgment. No, they're not having it set aside or want that default judgment to stay there. But if literally, it was missed by a day, they've explained, they do have a v with defense you say to your client. Well, look, they, they're going to have this set aside because they meet the criteria that's required in relation to the sector aside, default judgments. Any arguments I make, you know, how can I argue? They don't have real prospects of success when they do so, the argument I put forward, but it's not properly arguable. So the um difficulty you have there depending on the nature of your client's instructions is effectively a conflict. Your client says, I want you to make these, I want you to object to this. I want to oppose this application to set aside default judgments. But in order for you to do so, you don't have a proper argument in relation to that, which is a breach of the code of conduct. Just watch where your client's instructions conflict with your duties under 72.4 2.5 you do not place yourself in contempt of court and you comply with court orders, which place obligations on you. We've seen as well that if you fail to comply with a direction and that direction has a sanction, then of course, you need to apply for relief from sanctions, say for argument's sake, you don't file a witness statement in accordance with court directions and the sanction is, you can't, uh, call that witness to give oral evidence. That's sanction that applies non compliance with the court order is contempt. Of course. Ok. Generally no issue is raised because mistakes happen, directions are missed due to my star and things like that. Everyone understands that that happens, but it doesn't stop the fact that we have here the rule that, you know, in essence, you're told the code of government that says don't place yourself in contempt of court, comply with court orders, place obligations on you. The only time we're really gonna come um across the Sras desk, in essence, in relation to 2.5 is a repeated um uh situation where you're consistently missing court orders almost showing a uh sort of an affability in that you don't care in relation to compliance with these court orders. That's when it's likely to be an issue. Or alternatively, the sr a faces various quotes from various different clients who are not happy that their directions have been missed and it all involves the same individual 2.6. Uh You don't waste the court's time that that ties in with things about uh making submissions that are properly arguable. If you're making submissions that aren't properly arguable, you are wasting the court's time in relation to that. And 2.7 very important, you draw the court's attention to relevant cases and statutory provisions or procedural regularities of which you are aware and which are likely to have a material effect on the outcome of the proceedings. That basically means when you make an application or make submissions to the court, if you're aware of that, that there are two contradictory cases, maybe that are distinct on a fine line because of historic size as you wouldn't expect there to be um conflicting binding authorities. But maybe um one is more similar to your case than, than the other. But they've both come down on the, the, the same point. But in different ways, they make different judgments you raise both before the court. That's important. You can't just ignore the one that is not favorable and think doesn't matter. Uh you raise both. But the skill of a lawyer of course is to say, well, actually this case is more similar to case A which it goes in your favor because in an edge of the circumstances, look at the circumstances of the case, they apply it to the facts of the case which is presented to you here as opposed to case B where you can distinguish from that. So, well, that's dissimilar to Allah case for this reason. That's the skill of the lawyer involved. Same way as well that if you are aware, your opponent is making submissions to the court and they get something completely wrong. So we saw before in relation to uh a question of this one during the course of these films, excuse me, where the opponent was making an application to set aside default judgment. And, uh, was referring to the fact that they need to satisfy both limbs of the test, a real prospect or some of the compelling reason. Um, but they said, and they needed both. Um, well, actually it's an all in relation to this one or the other. They don't need both, of course effective, your opponents making submissions saying like, you know, we satisfy this one and this one as well. Um But they don't satisfy the, the second limb. So the court decides against them and you draw to the court's attention and say, well, you know, they don't satisfy both the limbs of that argument. Then, um, you're not drawn to the court's attention, the fact that there's uh something which has a material outcome on the, in the proceedings because had the court been aware they only need to satisfy one of the limbs then the decision in relation to whether to set aside judgment or not may have been different. That's important. It doesn't just come to your own representations. It's of course what you're hearing what your opponent is saying in relation um to theirs, be mindful of that. And of course, again, that ties in as well. It's not misleading by act or omission in relation to what you're doing, servicing competence, um is relevant to you have for clients and instructions from the clients and someone properly authorized to provide instructions on their behalf. That could be a litigant, um, uh, litigation friend where you've got, uh, an infant or a protected party involved. If you have reason to suspect the instructions do not, your client's wishes, you do not act unless you're satisfied that they do. However, in circumstances where you have legal authority to act, notwithstanding and it's not possible to obtain ascertain the instructions of your clients. You're subject to the over objective uh obligation to protect your client's best interests. That's just being aware as where maybe the litigation friend is doing something which is adverse to the interests of your clients and being aware. Of course, that the fundamental point is protection and uh of looking after your client's best interests to ensure that the service you provide to client is competent and delivered in a timely manner. Uh just moving on slightly in relation to this, not combat. And in a second, um you maintain your competence to carry out your role and keep your professional en larger skills up to date and you consider and take account of your client's attributes and needs and circumstances. So 3.2 and 3.3 is about your competence, dispute resolution matters change, uh an awful lot. Um We have lots of rules changing all the time in relation to dispute resolution. You have to keep up to date with that. Don't just dip in. Uh And I so to speak, keep your professional margin skills to date. And what happens if you, you've been asked by your um your leading partner in the firm to take on a case and you haven't um in a case of that nature for a long time. So your knowledge is out of date, that's the risk. You're not acting in your client's best interest by doing. so you need to say and decline that instruction. Don't have the requisite skill or alternatively, look, I'll, I'll get myself keyed up. I need to go on this training course and do Xy and Z and then I'll be able to handle a case of these, this nature. Just being aware of your own limitations and your own skill set. Don't take on a case just because it's great for making money or Aternity cos you've been asked to do so, always bear in mind your elements of your and your own knowledge. Importantly, 3.4 you consider and take account of your client's absolutes needs and circumstances throughout dispute resolution. All of these films. What you've seen is me talking about parties who are vulnerable, you've got a vulnerable witness or a vulnerable party and how you deal with that. We've seen that in forms directions, questionnaire list and questionnaire claim form in relation to is your client or a party to the action vulnerable. If so, what steps can we take in relation to that vulnerability. So that ties in also with the need to consider uh and take care of your client's attributes, needs and circumstances. So not only is the obligation there within district resolution and CPR themselves, it also falls back on the sr a code of conduct and your requirements, understand the elements of what's personal to your client that can impact the evidence they give or the directions that are necessary conflicts. You do not act in relation to a particular um or sorry matter or particular aspect. If you have a conflict of interest or a si significant risk of such a conflict in relation to that matter or aspect, we see this in practice certainly in relation to the appointment of a litigation um friend as an example. So if you have a, a claim where you have a claim for a child who's been injured as a result of a road traffic accident, child's a passenger and the mother uh was driving the vehicle. Of course, you need litigation friends for them to act on behalf of that in infant and protect their interests. But if you've got someone who's driving the vehicle, who may end up being lower cos either they didn't, the child was um under the age of 14 and they didn't have the seatbelt attached which forced to the driver's responsibility. Or alternatively, maybe there's some aspect of the case, which means that the circumstances could be the fact that the mother was speeding or she may be partly responsible if not wholly responsible for the accidents. A litigation friend must have, uh, no interest too in the case, which is adverse to that of the, uh, the child. It's important that in that situation that if you've got a driver of a vehicle and the, and the infant's a passenger don't use the driver as a litigation friend. The risk of conflict is too great. You use someone else, a sister, the dad, uncle, whatever it may be, whoever it may be grandparents to act as the litigation. Friends were not involved in relation to the circumstances of the accident just in case, it also follows as well with fatality claims. So in fatality claims, you have the uh one claimant who acts on behalf of the state, whether the administrator or administrative, the executor or executrices and they bring the claim on behalf of all the dependents. So that would be those who are allowed by the deceased Children. Inevitably are one of those you have to bear in mind with Children as well in that they are dependent. So they will uh receive a sum of money arguing. It's part of the fatal accidents. Um But of course, because they're Children, they still need a litigation friend. Don't use the person who is the executor or execs administrator or administrators because what happens because they act and they get all this money into one big pot and then of course, it's deviate amongst the relevant dependents. What it means is the more that's given to the dependents, the less that goes to the executors, executive administrator or administrative cos that individuals bring in that claim. There's your conflict, you give more to them, they get less. If they get more, then the dependents get less. And there's a conflict element. There have a litigation friend who's separate from the person bringing their claim. Generally with, with fatalities. It tends to be the widow or widower who brings a claim, which is, tends to be really the person you go to, to act as the litigation friend. Just find someone else, another family member to act on their behalf. 613, you keep the affairs of currents for former clients confidential unless disclosure is required or permitted by law or the client consents top of that where you're asking for a client in a matter, you can, uh, you make the client aware of all informa information material to the matter of which you have knowledge just taking that further quickly. You do an app for a client in a matter where that client has an interest adverse to the interests of another current or former client um, of you or your business or employer for whom you or your business or employer holds confidential information, which is material to that matter. This ties in again with um, conflict with economic confidentiality. Imagine a situation where you have two parties in the vehicle, both adults, um, driver and passenger and you are instructed on behalf of both. The problem arises. Of course, is what happens if there's an allegation uh against the driver of the vehicle, that something they would do is that they are partly liable or they've contributed to the accident. The risk is, then, of course, the information you get from the one you'd want to utilize to benefit the passenger or vice versa, the passenger may have said something which benefits then the, the driver, that's where your conflict comes in. You have to be very careful. You cannot for both those parties in that vehicle. If arguably they're both singing from the same hinge sheet, they both give the same evidence. But the second you get any, any, uh, an issue or uh, a possibility that that driver may be in some way responsible. Of course, when you're acting in the best interests of the passenger, your advice may be let's pursue the other vehicle, but also let's pursue the driver of this vehicle as well because he either way you're innocent, ok. They can share out who's, um, liable between them. But of course, that would mean you advising your one client to sue another client can't do that. Yes, that's where you'd have an element of conflict. So, always watch and be very careful. You've got two people in the same vehicle where you decide to act for both in some instances, you can you app for both and there's no problem. But if you act for both and then also when something arises there, what happens is you can no longer app for either of them, you'd have to, um, say, look, you have to go elsewhere and instruct another firm. Um, that isn't really the best way to deal with it. Arguably, it may be better to take just the one and let the other one go and um find another firm to act for them. Uh That way there's no risk of starting work for that client. And then they end up having to say, look, you're gonna have to go elsewhere because of the nature of the conflict, which is no reason, corporation and accountability. So you are honest and open with clients. If things go wrong and if a client suffers loss or harm as a result, you put matters right, if possible and explain fully and properly what has happened and the likely impact, basically, be honest with your client district resolution, things go wrong. Um It's the nature of litigation. That's why we have um, the sanctions and we have relief from sanctions, the ability to put things right. So if you miss the date for the deadline for serving witness statements, you know, it's your client's witness statement, you know, your client cannot give oral evidence that's gonna prejudice their case massively. So how you put it right? You make the relief from Samson's application. But again, don't mislead by a remission. If it happens, you tell your clients, ok, you can't just try and sort it out and you can sort it out. That's fine. No need to tell the client we're ok. The mistake happens, you tell the client, you tell the client how you're going to rectify it and you move on, the client may then have an issue with regard to your competence and complaints about that. But that's a separate issue. The simple fact is when things go awry, it's always about informing your clients and never not informing them. And you to think about the point when you do that, you don't inform them after you've tried to correct it and things haven't worked out, inform them as soon as things go wrong and of course you update them, ok. This is going wrong. This is what we can do. And then later on being to the application for relief from sanctions, permission was granted, we're all good to good to go. Everything's ok. You can then move on in relation to that. It's important that's been open and honest with your clients. Right. Let's try a practice question uh around epics in dispute resolution then. So you've got a solicitor acting for a multinational supermarket in a product liability claim against a sport of specialist exotic fruit supplier. The defendant is represented by a newly qualified solicitor. The claimant's solicitor submits an application for specific disclosure during a telephone conference with the defendant's representative, the solicitor declares that a leading Casey King's counsel will be representing the claimant at the forthcoming hearing. And that as a result, the defendant is likely to face an extensive disclosure order as well as a substantial cost order following the application hearing. In fact, the solicitor has not yet instructed King's counsel to represent the claimants at the hearing. Although it's been considered by the clients, has a solicitor acted in accordance with the sr a code of cont. So a no, there was a clear attempt to mislead the defendant's solicitor about the attendance of the case. CB Yes, the solicitor has not misled the defendant's uh solicitor. They can be outline, outlined a potential scenario for the defendant's solicitor to consider c yes. Whilst the solicitor is not permitted to mislead the defendant's solicitor, the fact that their client is still contemplating instructing a case c sufficient to mean that they have not breached the code. The note there is a clear attempt to mislead the defendant solicitor about the nature and extent of the disclosure order which the court is likely to impose a no, there is a clear attempt to mislead the defendant solicitor about the nature of the costs order which the court will make what I would say in, in approaching a question like this na uh of this nature. And you see this with all ethics and conducts questions in generally the question will be around, have they acted in accordance with the sr a code of conduct generally? So, something's happened. Is there a problem with the code of conduct when you read, um, the facts of the, uh, of the question, you may instantly, um, raise a view and think. Well, no, they haven't complied. That's the case. Look first to the nose and work out which of those sits best with it. If they think there's no issue, then look to the yeses and do it that way, narrow down the options for you the that way. So this one note as a clear attempt to mislead the defendant solicitor about the attendance of King's Council, they've said they've instructed King's Council. Therefore, you're gonna face these potential sanctions costs and, and a specific disclosure and extensive disclosure order. Clearly, that's misleading. It's misleading by actors while stating specifically this is what we have done. You haven't, if you're contemplating, you contemplate it, you say you're con we're thinking about instructing a case. So know that you've done it um, in relation to those. Of course, the um cos you've stated that that makes options B and C um incorrect, which says you haven't misled because it's a potential scenario. That's not the case. You actually say yes, I have instructed them that's misleading in others. Uh Yes. Uh You're not permitted to mislead. We know that, but because you're still contemplating it, you've not breached the code Well, yes, you have because you simply said we have instructed, which is incorrect and in relation to DNA, um, they're incorrect in relation to the nature of what the misleading information was about. That refers to the nature and extent of the disclosure order and also the nature and extent of the costs order. Those aren't the elements that are being misled the misleading elements is the fact that you've instructed a case. That's when you're misleading. Thank you very much.

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SQE Prep Course

Instructor

Darren Hackley-Green

Darren Hackley-Green

5 Users
4 Courses
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Darren was called to the Bar in 1999 but then went on to cross qualify as a Solicitor in 2002. Darren has a Masters (LLM) in Advanced Litigation and became a Solicitor-Advocate (Civil and Criminal proceedings) in or about 2006. Darren has been employed by NewLaw Solicitors since September 2006. Darren specialises in Personal Injury claims and sub-specialises in jurisdictional claims (accidents in other countries) and also handles Criminal Injury Compensation Scheme (CICA) claims. Darren has been teaching Client Care levels 3 and 6 and Civil Litigation levels 3 and 6 to CILEx students for the past 5 years.

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