Civil (8)
Terms
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- What three types of costs orders do you need to know about?
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(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?
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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?
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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?
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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?
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(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'?
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(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?
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(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?
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(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?
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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