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Civil (8)

Terms

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What three types of costs orders do you need to know about?
(1) Costs in the case
(2) No order as to costs
(3) Costs in any event

In relation to interim applications, when are costs considered?
Costs are considered at the end of each and every interim application.
What is the general rule as to costs? And what is the reference?
The unsuccessful party will be ordered to pay the costs of the successful party.
CPR 44.2(2)(a)
Does the court have discretion as to costs?
Yes, the court may make a number of different kinds of costs orders.
Can costs be ordered to be paid on an indemnity basis?
Yes
What does a 'costs in any event' order mean?
The person against whom the order is made will be required to pay the other side's costs irrespective of the final outcome of the case.
If a costs in any event order is made, within what period must costs be paid?
Within 14 days of the hearing date.
What should you do if you want to recover the costs of your interim application?
You must file a statement of your interim costs at the court not less than 24 hours before the hearing.

CPR PD 44 9.5(4)(b)

What costs order is likely to be made if a claimant wins in a summary judgement application?
Normal rule as to costs applies (CPR 44.2(2)(a)) - Winner pays the losers costs.
What costs order would a defendant ask for if a claimant loses in a summary judgement application?
Costs in any event
What is the purpose of summary judgment?
To allow the court to root out weak cases at a very early stage without running the risk of the case getting to a trial and taking up valuable court resources.
What is judgment in default?
Claimant can automatically claim judgment against the defendant when the defendant does not file an acknowledgement of service or defence within the requisite timescales
Who can apply for summary judgment?
The claimant and the defendant.
Who can apply for judgment in default?
The claimant only (remember that the D must not have acknowledged service or filed a defence within the requisite timescales).
When can the application for summary judgement be made by the claimant? Auth?
Must wait until the D has served the acknowledgement of service.
CPR 24.4 (1)
When can the application for summary judgement be made by the defendant? Auth?
Technically can apply anytime after proceedings have been served against them.
What is the test for summary judgment? Auth?
(1) The applicant for summary judgment has to show that their opponent has 'no real prospect' of success; AND

(2) 'No other compelling reason' why the case or issue should be disposed of at trial.

What case law helps to clarify what is meant by 'no real prospect'?
(1) Swain v Hillmn; and
(2) International Finance Corp v Utexafrica SPRL
Swain v Hillman
Realistic as opposed to fanciful prospect of success. Not a mini trial.
Case: Realistic as opposed to fanciful prospect of success. Not a mini trial.
Swain v Hillman
'Real' means better than merely arguable.
International Finance Corp v Utexafrica SPRL
International Finance Corp v Utexafrica SPRL
'Real' means better than merely arguable.
What might constitute 'a compelling reason' that would make a case unsuitable for summary judgment?
- Dispute on the facts. Court will need to hear submissions from both sides and make a finding as to fact before considering the legal outcomes.
Save for issues related to fact, what other 'compelling reason' might give rise to a case being unsuitable for summary judgment?
Where expert evidence is required.
What orders can the court make post summary judgment?
(1) Judgment entered for C on all of claim or a particular issue;
(2) Judgement entered for D - end of C's claim - claim is dismissed; or
(3) Court to make a conditional order - payment into court of example.

If during the course of proceedings a SJE makes findings adverse to a party's claim, what steps is that party likely to take?
(1) Put questions to SJE (CPR 35.6);
(2) Instruct advisory expert to see if they agree and inform questions; and
(3) Cross examine SJE at trial

If during the course of proceedings a SJE makes findings adverse to a party's claim, what steps is the other party likely to take?
Serve notice to admit facts on the other side (CPR 32.18). If the other side fails to admit certain facts, there may be costs consequences (CPR 44.2(5)(b)).

If a Claimant has not complied with the PD on pre-action conduct prior to commencing proceedings, can the Applicant apply for summary judgment once an AOS has been filed?
No. Where the claimant has failed to comply with the pre-action protocol, an action for summary judgment will not normally be entertained before the defence has been filed.
If a C applies for summary judgment before a D files his defence (even post AOS), must the D file a defence before the hearing?
No, the D needn't. CPR 24.4(2)
What is the model form of Statement of Costs to be used for summary assessments?
Form N260.
If a SJE is appointed and one party is dissatisfied, will that party be granted permission to instruct a second expert?
In Daniels v Walker, the CA granted permission as the challenge was not considered to be fanciful. Further, value of the claim was high.
Daniels v Walker
The CA granted one party permission to instruct a second expert when that party saw (and was dissatisfied with) the evidence of the SJE.
Peet v Mid Kent Healthcare Trust
Lord Woolf - the rules permit the court to require the use of a SJE. It is not a matter of choice.
Lord Woolf - the rules permit the court to require the use of a SJE. It is not a matter of choice, unless there is good reason that a SJE should not be used.
Peet v Mid Kent Healthcare Trust

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