Civil (9)
Terms
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- What is the general rule on costs? Auth?
-
Unsuccessful party pays successful party’s costs.
CPR 44.2(2) - True or false - If a Claimant accepts a Defendant's Part 36 offer within the relevant period, the C will be entitled to the settlement amount contained in the Part 36 offer and all its costs of the proceedings.
- False.
- What does CPR Part 36 offer?
- A specific way of settling disputes
- When can a Part 36 offer be made?
- At any stage of the proceedings
- Can a Part 36 offer be made before proceedings have been issued?
- Yes
- Why might you use a Part 36 offer if your client had a strong case?
- To pressure the other side to pay
- Why might you use a Part 36 offer if your client had a weak case?
- To resolve the proceedings without going to trial and losing
- Who can make a Part 36 offer?
- Either party
- How does the overriding objective interact with Part 36 offers?
- The overriding objective encourages attempts to settle
- Is a party ever penalised for making a Part 36 offer to settle?
- No, it is only ever the party's opponent who may be penalised
- What CPR sets out the form and content required of a Part 36 offer?
- CPR 36.2
- What should a Part 36 offer make clear?
- Whether the offer includes or excludes interest
- How are Part 36 offer headed best in practice?
- "Without prejudice except as to costs"
- Will a Part 36 offer remain open even if it has previously been rejected or the offeror has made a subsequent offer in different terms?
- Yes on the authority of Gibbon v Manchester City Council and LG Blower Specialist Bricklayer Limited v Reeves
- What should a party do if it no longer wishes to be bound by a Part 36 offer?
- It should serve express written notice withdrawing or varying the offer.
- If a fresh Part 36 offer intends to vary an earlier offer, what should be done?
- The terms of the new offer should expressly state that the terms of the new Part 36 offer vary the first.
- What if a Part 36 offer is made less than 21 days before the start of trial?
-
(1) the relevant period for acceptance may be less than 21 days; and
(2) the court's permission is required to accept the offer. - What if an offer is unclear? Auth?
- The offeree may seek clarification within seven days of the offer being made (CPR 36.8(1))
- Might the court ever order early disclosure of admissible documents if a Part 36 offer is made early in the proceedings?
- Yes, to give the offeree the additional material required on which to base its decision.
- How is a Part 36 offer accepted?
- By serving written notice of the acceptable on the offeror (CPR 36.9(1))
- When accepting a Part 36 offer, in addition to serving written notice on the offeror, what must the offeree also do? Auth?
- A notice of acceptable must also be filed with the court (36A PD 3.1)
- If a Part 36 offer is accepted, what will happen to the claim? Auth?
- It will be stayed (CPR 36.11(1))
- If a claimant accepts a defendant's Part 36 offer, what is the claimant entitled to?
-
(1) the settlement amount; and
(2) its costs of the proceedings up to the date the notice of acceptance was served on the offeror (CPR 36.10) - If the claimant accepts the defendants offer, what is the rationale in awarding the claimant its costs up to the date of acceptable?
- The claimant will be considered to have "won" its claim and therefore the general rule in CPR 44.2 (2)(a) should be followed.
- How long does a defendant have to pay a Part 36 offer which is accepted?
- 14 days (CPR 36.11(6))
- What are the implications if a defendant fails to pay the settlement amount under an accepted Part 36 offer within the requisite timeframe?
- The claimant may enter judgment for the amount, to enforce the terms of the agreement, rather than start new proceedings.
- What happens if a Part 36 offer is rejected?
- The case continues towards trial
- Can more than one Part 36 offer be made?
- Yes
- What should you ask yourself when analysing the consequences of a Part 36 offer?
-
(1) Who made the offer?
(2) Which part of CPR 36.14 applies (if any)?
(3) Who does the court wish to penalise (i.e. who protracted proceedings?)
(4) How, and for what period?
- What sort of order may be made if the claimant wins but is awarded the same or less than the defendant offered?
- A 'split costs' order - the claimant gets what he is owed up until he should have accepted the defendant's Part 36 offer, thereafter the claimant pays the costs for the 'wasted' part of the proceedings.
- Can the claimant and defendant each have effective offers at the same time?
- Yes
- In terms of negotiations that do not relate to Part 36 offers, what is it vital to do in terms of labelling offer letters?
- It is essential to add the label 'without prejudice' on all correspondence clearly. This helps you to separately identify 'without prejudice' correspondence from 'open' correspondence.
- Do the courts only look for the label 'without prejudice'?
- No - the court will look at the surrounding circumstances. The without prejudice principle covers any negotiation genuinely attempting settlement.
- What will occur once settlement has been reached?
- While settlement is a binding contract, it is desirable to secure a court order if possible.
- Why is desirable to secure a court order post settlement if possible?
-
(1) existing court proceedings need to be brought to an end; and
(2) existence of an order may assist in enforcing the agreement reached, - What four ways can the existing proceedings be dealt with?
-
(1) Stay
(2) Dismissal
(3) Discontinuance (CPR 38)
(4) Judgment / consent order - If a claim is dismissed, what are the costs consequences?
- There are no automatic costs consequences, costs are dealt with as decided between the parties and reflected in a consent order.
- What are the general consequences of a claim being dismissed?
- The claimant cannot bring fresh proceedings. If advising the defendant, the best outcome is for the claim to be dismissed.
- Who can discontinue a claim?
- The claimant
- What is the assumption from a costs perspective if a claim is discontinued?
- The claimant pays the defendant's costs (parties can however agree a different order)
- What is the difference between discontinuance and dismissal?
- In certain circumstances, discontinuance may allow for fresh proceedings to be brought on the same facts (but only with the court's consent).
- Summarise what happens if the court gives judgement / makes a consent order?
- The court is asked to give judgment for one or other of the parties. Could include order to pay sum (in whole or by instalments).
- In terms of enforcement, if there is no court order what are the implications for the claimant?
- Only option is to commence proceedings for breach of contract (summary judgment is usually possible)
- What can the claimant do if the terms of the agreement are on the fact of the court order?
- The claimant can move to enforcement straight away.
- What must the claimant do if the terms of the agreement are contained in a Tomlin Order and enforcement is necessary?
- The claimant must obtain an order for brach of the terms of the schedule before enforcement.
- What standard direction will the court give on allocation?
- A deadline by which a pre-trial checklist (form N170) is to be filed.
- What is a pre-trial checklist also known as?
- A listing questionnaire
- When is the pre-trial checklist sent to each party?
- At least 14 days before filing
- When will the due date for the pre-trial checklist be?
- At least 8 weeks prior to the trial date or the start of the trail period (29 PD 8.1 (3) - (4)
- What might the court do if neither party files a pre-trial checklist? Auth?
- Make an unless order (CPR 29.6(3))
- Do the claimant and the defendant pay a fee on filing the pre-trial checklist?
- No. Only the claimant. The defendant does not.
- What should the claimant lodge for all High Court cases in the Chancery Division and the Queen's Bench Division?
- A reading list that sets out an estimate of the reading time the judge is likely to require to get the know the case and the relevant authorities.
- What is required for the purpose of High Court trials?
- A skeleton argument summarising the submissions to be made and citing the authorities to be relied on.
- What is also required to underpin a skeleton argument?
- A list of authorities must be submitted by 5 pm the day before the hearing (to enable copies of the relevant law reports to be brought into court).
- If a case settles between the listing stage and trial, what must the parties do? Auth?
- Notify the listing officer for the trial court immediately (39A PD 4.1)
- What is a notice to admit facts? Auth?
- A notice requiring a party to admit certain facts (CPR 32.18)
- When must a notice to admit facts be served by?
- No later than 21 days before trial.
- What are the implications for the party that failed to admit facts subsequently proven at court?
- May have costs implications (CPR 44.2 and 44.3)
- What CPR sets out the types of orders that the court can make?
- CPR 44.2(6)
- What CPR sets out the factors to be considered by the court in exercising its discretion?
- CPRs 44.2(4) and (5)
- What are the two bases of assessment for the purpose of the court making a costs order?
-
(1) Standard basis
(2) Indemnity basis - What CPR allows for the court to make a costs management order?
- CPR 3.15
- What is a summary assessment of costs
- Court decides the amount payable by way of costs immediately at the end of a hearing.
- What is a detailed assessment of costs?
- This involves leaving the quantification of costs to an authorised court officer.
- List the matters to consider in the context of preparing for trial.
-
(1) Trial bundle
(2) Reading list
(3) Skeleton arguments
(4) Authorities
(5) Summary
(6) Settlement
(7) Notice (facts – documents)
(8) Brief to counsel
(9) Secure attendance of witnesses and experts
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