DISPUTES ALL

When can a Part 36 offer be made?

At any stage of the proceedings, including before proceedings are issued

Calderbank Offer

An offer usually communicated in writing and written without prejudice as to cost such that it cannot be referred to the judge until costs are considered after trial

Requirements for a Part 36 offer under CPR 36.5

• In writing

• Made clear it is pursuant to part 36

• Specify the relevant period

• State whether it relates to the whole or part of the claim

• State whether it takes into account any counterclaim

Further requirements for a defendant’s Part 36 offer under CPR 36.6

• Must generally be an offer to pay a single sum of money

• An offer to pay all or part of the sume later than 14 days after acceptance will not be treated as a Part 36 unless the offeree accepts

Clarifying a Part 36 offer under CPR 36.8

Can be sought within 7 days of service

Withdrawing a Part 36 offer after acceptance under CPR 36.9

Once accepted an offer cannot be withdrawn or the terms changed

Withdrawing an Offer and the Relevant Period

• If the relevant period has expired, it can be withdrawn at any time or may be withdrawn automatically

• If the relevant period has not expired, withdrawal will not take effect until the period has ended

How to accept a Part 36 offer?

Serve notice of acceptance and if case is already issued filed to court, there is no prescribed form

Consequence of accepting a Part 36 offer

• Stay

• Settlement Sum

• Costs (depending on when offer was accepted)

Costs consequences when Part 36 offer accepted in the relevant period udner CPR 36.13(1)

Claimant is entitled to its costs of the proceedings up to the date of acceptance

Costs consequences of acceptance outside the relevant period

Court will determine liability for costs unless the parties agree them however must, unless unjust, order that:

• Clamant be awarded costs up to the date the relevant period expired; and

• Offeree to pay offeror’s costs from period to date of expiry of acceptance

Key questions for when a party rejects a Part 36 offer and the case continues to trial

• Trigger: Does the failure to accept the defendant’s offer trigger any consequences?

• Consequences: What are those consequences?

Consequences for where the claimant rejects a Part 36 offer and fails to obtain a greater amount than that offer

Claimant pays the defendant’s costs from the relevant period including interest

Consequences where the defendant rejects a Part 36 offer and the claimant receives a greater amount at trial

The claimant receives:

• Indemnity costs from the end of the relevant period and interest up to 10% above base rate

• Interest on damages up to 10% above the base rate from the end of the relevant period

• An addidional sum up to 10% of £500,000 and 5% above £500,000 and capped at £75,000

Conditions for “unless unjust to do so”

• Terms of any Part 36 offer

• Stage in proceedings when offer was made

• Information available to the parties

• Conduct of the parties relating to the offer

• Whether the offer was a genuine attempt to settle

Types of ADR

• Negotiation

• Meditation

• Arbitration

• Med-Arb

• Expert evaluation

• Expert determination

• Conciliation

Court’s powers regarding ADR

• Can stay an order that the parties can explore ADR

• Can direct the parties to consider ADR and require an explanation of the party’s thinking in that regard

Discontinuance

The claimant chooses not to continue with the whole or part of the claim under CPR 38

Consequences of Discontinuance

• Claim or part of claim discontinued; and

• Claimant pays the defendant’s costs up to the point of discontinuance unless the court orders otherwise

Procedure for Discontinuance under CPR 38.3(1)(a) and (b)

File a notice of discontinuance at court and serve a copy on every party

Consent Orders under CPR 40.6/ 40B PD 3

Indicate that parties agree the terms of the order and there is no need for the court to hear arguments

Tomlin Orders

Used when parties wish for part of the consent order to be confidental or when the agreed terms go beyond those that the court could generally order

Implementing a Tomlin Order

Requires court approval

Trial preparation checklist

• Listing questionnaire

• Pre-trial review

• Skeleton arguments

• Case summary

• Trial bundle

• Reading list

• Witness summons

• Authorities

• Notice to admit facts

Requirements for the Pre-trial checklist/ listing questionnairee

• Confirm whether they have complied with directions/ when they will

• Specufy any further directions required

• Confirm whether expert evidence has been/ will be consented to

• To give details of experts, their reports and availability

• To give details of witnesses and their availability

• To give details of representatives and their availability

• To estimate trial length and attach a proposed parties

• Sent at least 10 weeks before trial

What guidance must listing directions by the court include under PD29?

• Fixing or confirming the trial date

• Give a time estimate for the trial

• Fix the place of the trial

What guidane may listing directions by the court include?

• Directions on evidence, in particualr of experts or other special arrangements

• A trial timetable

• Preparation of trial bundles

• Any other matters required to prepare the case for trial

Timit limit for filing the Trial Bundle

No more than seven days or no less than three days before the trial begins

Process of the Trial

• Claimant’s opening speech

• Claimant’s case

• Defendant’s case

• Defendant’s closing speech

• Claimant’s closing speech

Disposal Hearing/ Split Trial

The court may firstly decide who to blame and then at another time have a hearing to determine quantum for costs

Drawing up

Setting an order out in the formal document to be sealed by the court

When will an order not be drawn up by the court?

• Court orders a party to draw it up; or

• Party agrees to draw it up without the court’s permission; or

• Court dispenses of the need to draw it up; or

• It is a consent order

When does a judgment/ order take effect under CPR 40.7?

From the date it is given or made, not when it is served

Interest rate on judgments/ orders under s17 Judgments Act 1838

8% per annum

What does the Debt Respite Scheme allow?

An individual debtor may approach a debt advice provider to ask for breathing space of 60 days on the basis they are unlikely to be able to repay their debt

Requirements for an Order to obtain information from the judgment debtor

Must contain a penal notice stating that no compliance with the order may result in imprisonment, fine or seizure of assets

General enforcement methods (financial) under 70 PD 1.1

• Writs/ warrants of control

• Third party debt orders

• Charging orders

• Attachment of earnings orders

Enforcement for taking control of the debtor’s goods

• More than £5000, in High Court

• Less than £600, in County Court

• If between these limits, in each court

Registers to use to check an opponent’s financial status and assets

• Land Charges Register

• Company Searches

• Individual Insolvency register

• Attachment of Earnings Order Index

• Register of Judgments, Order and Fines

How can a debtor clear their reference in the Register of Judgments, Order and Fines under s13(3) Register Regulation?

By satisfying their debt within one month of the judgment/ order

Issues with a legally aided opponent

A winner cannot recover costs and may not recover damages

If the judgment debtor has assets which are abroad…

It may be necessary or desirable to take steps to enforce a judgment of the English Court in a foreign jurisdiction

If the judgment creditor has a judgment from a foreign court to enforce against assets here…

It will be necesssary to obtain an English court order to faciliate this

Enforcement abroad for assets held abroad udner CPR 74.12 and 74.13

Creditor must make an applciation and provide evidence that:

• Identifies gronds on which judgment was obtained

• State whether defendant objected to jurisdiction

• Show that judgment has been served

• State appeal details

• State whether interest is recoverable on the judgment

Exempt goods to control of goods under Regulation 4(1)(b) Taking Control of Goods Regulations 2013

• Tools of the judgment debtor’s trade up to an aggregate value of £1350; and

• Basic domestic items

How to apply for a TCG order?

Writ/ Warrant of control which is:

• Addressed to the enforcement order

• Contain a necessary details and the amount of outstanding debt to be recovered

• Contain a fixed amount for costs of taking control of goods including the court fee

3 stage process after writ/ warrant is delivered

1. Giving notice to the judgment debtor of enforcement

2. Entering premises and securing the goods

3. Sale of the goods

Requirements for giving notice to the judgment debtor of enforcement

Advance notice must be given at least 7 clear days before taking control of the goods and this must be exercised within 12 months

Controlled Goods Agreement

The judgment debtor is permitted to retain custody of the goods despite the enforcement officer taking control of them pending payment of the debt

Third Party Debt Orders under CPR 72.2(1)

Court may make an order to pay a debt owed to the judgment debtor to the judgement creditor in satisfaction of the judgment debt

Charging order on land or certain securities

A form of charge taken over land or security which secures a judgment debt but will require an order for sale to obtain the amount immediately

Attachment of earnings orders

Where the debtor’s salary has deductions made by their employer which are paid into court for onward transmission to the judgment creditor

When can insolvency proceedings by initiated by the creditor?

• For an individual, when there is a judgment debt against them for more than £5000

• For company, when there is a judgment debt against it for more than £750

Grounds for appeal under CPR 52.21(3)(a) and (b)

• Decision was wrong; or

• Unjust due to a serious procedural or other irregularity in the proceedings

How can a decision of the court be wrong?

• An error of law; or

• An error of fact; or

• An error in the exercise of the court’s discretion

Permission for an Appeal

May be apply for when the initial judgment is made and/or in writing at a later time

How an application for permission to appeal will be dealt with

• In the Court of Appeal, on paper and the judge will determine whether there should be hearing

• In the County Court or High Court, if that appeal court’s permission is refused, the appellant may request within 7 days an oral hearing to reconsider

Time limits for obtaining permission/ appealing under CPR 52.12(2)(b)

Appeal must be made within 21 days of the date of the lower courts decision using Form N161

Test for granting permission for first appeals under CPR 52.6

• Appeal must have a real prospect of success; or

• There is some other compelling reason why the appeal should be heard

Test for granting permission for second appeals under CPR 52.7

• Appeal must have a real prospect of success and raise an important point of principle or practice; or

• There is some other compelling reason for the Court of Appeal to hear it

Stay on Appeal

General rule is that an appeal does not operate as a stay of execution on the order of the lower court

Routes of Appeal under 52A PD 3.5

• County Court District Judge → County Court Circuit Judge

• County Court District Judge dealing with non-insolvency proceedings brought pursuance to the Companies Act → High Court judge

• County Court Circuit Judge → High Court Judge

• High Court Master → High Court Judge

• High Court Judge → Court of Appeal

What order can the appeal court make under CPR 52.20(1) and (2)?

Any judgment that the lower court could make, specifically:

• Affirm, set aside, or vary any order or judgment given by the lower court

• Refer any claim or issue for determination by the lower court

• Order a new trial or hearing

• Make orers for the payment of interest

• Make a costs order

• Dismiss the appeal

Three things to consider for an international dispute

1. Do the courts of England and Wales have jurisdiction to determine the claim?

2. Which country’s laws will apply to determine a dispute?

3. Will it be necessary to enforce the judgment abroad and how will this be done?

Hage Convention on Choice of Court Agreements

Aims to provide certainty for commercial parties that wish to choose a particualr country’s courts to determine their disputes, regardless of where the dispute takes place or the parties are based

Hague Convention Approach

1. Is the matter a civil or commercial matter?

2. Is it an excluded matter?

3. Does the clause give jurisdiction to a contracting state?

4. Is jurisdiction given exclusively?

5. Is the agreement concluded/ documented/ evidenced in writing?

6. Is the agreement ‘asymmetric’?

Examples of excluded matters under the Hague Convention

• DIsputes with consumers

• Employment matters

• Others listed in Article 2

Contracting states to the Hague Convention

• The UK

• All EU Member States

• Mexico

• Singapore

• Montenegro

Consequences of a clause falling within the Hage Convention

1. Court cannot decline jurisdiction on the basis that the dispute should be decided in another country; and

2. Any other court must refuse to hear proceedings

Matters to establish to obtain permission to serve proceedings on the defendant outside of the jurisdiction under CPR 6.37

1. Claimant needs to establish one of the grounds in 6B PD 3.1;

2. Claim must have reasonable prospects of success;

3. England and Wales must be the proper place in which to bring the claim

Grounds for permission under 6B PD 3.1

• Person domiciled within the jurisdiction

• Contract made within the jurisdiction

• Contract goverened by English law

• Contract contains a term that the court will have jurisdiction

• Breach of contracts occurred within the jurisdiction

• Tortious damage occurred or will occure within the jurisdiction

Reasonable prospect of success udner De Molestina v Ponton

For permission, this is a low threshold akin to the threshold required to resist an application for summary judgment

Under the common law, the Courts of England and Wales will have jurisdiction if…

• It is possible to serve proceedings on the defendant in the jurisdiction; or

• The court gives permission to serve the proceedings on the defendant outside of the jurisdiction; or

• The courts of England and Wales are given jurisdiction by a clause in the contract

Time Limit for Service out of the jurisdiction

Where a claim form has been validly issued, the period ofr service is 6 months

When is the court’s permission not required to serve from a different jurisdiction into England and Wales

• The Hague Convention applies; or

• The contract contains a clause that England and Wales shall have jurisdiction

Form N510

Used when claimant is seeking to serve an English claim form abroad without permission

Form N244

Used when seeking to serve a claim form abroad with permission

Options for methods of service outside the UK

• In accordance with an agreed regulation, convention or treaty

• Through the government of the destination country

• By any method permitted by the law of the destination country

Alternative Service under CPR 6.15

Where normal service is not possible or has been unsuccessful so the claimant serves using a different method such as:

• Serving on the defendant’s unauthorised solicitors; or

• Placing an advert in a newspaper notifying the defendant

Dispensing with service under CPR 6.16

Usually only exercised when the other side is already aware of the document

Disputing

A party, on receipt of court proceedings, may wish to challenge the English and Welsh court jurisdiction to hear a dispute

Procedure for Disputing

1. File an acknowledgment of service indicating intention to dispute

2. Apply within 14 days after filing acknowledge to dispute the jurisdiction with evidence

Submitting to the court’s jurisdiction

If a party submits to the jurisdiction of the courts of England and Wales, then they cannot later dispute that jurisdiction

Questions to ask where a contract has a conflict of laws under Rome I

1. Have the parties chosen which law should apply?

2. Does the contract relate to one of the cases specified in Articles 4(1)(a) to (h)?

3. If no, where is the “characteristic performer’s” habitual residence?

4. Is the contract “manifestly more closely connected” with another country?

Types of contract under Articles 4(1)(a) to (h) and their applicable law

• Sale of Goods → Seller’s habitual residence

• Provision of services → Service provider’s habitual residence

• Contract relating to land → Where the land is situated

• Distribution contract → Distrobutor’s habitual residence

Questions to ask where a tort has a conflict of laws under Rome II

• Have the parties validly chosen which law should apply?

• Do the claimant and defendant habitually reside in the same country?

• In which country did the tort occur?

• Is the tort “manifestly more closely connected” with another country?

Parties choice for which laws apply to a Tort

• If after the tort, the choice will be effective

• If before the tort, the choice will only be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law

Where is a country’s habitual residence?

Where that person’s principal place of business is

Civil Jurisdiction and Judgment Act 1982

Governs which UK nation should have jurisdiction when the defendant is based in the UK

Exclusive Jurisdiction under Sch 4, Rule 11 Civil Jurisdiction and Judgment Act 1982

For some particular types of dispute, the Act provides that one part of the UK, and only that part, can have jurisdiction such as real property which can only be heard where it is situated

Jurisdiction Agreemnts under Sch 4, Rule 12 Civil Jurisdiction and Judgment Act 1982

Where the parties agree that a particular part of the UK will have jurisdiction, then that part will have jurisdiction

Submission under Sch 4, Rule 13 Civil Jurisdiction and Judgment Act 1982

If a party submits to the jurisdiction of a court in the UK, for example by filing a defence rather than contesting jurisdiction, then that court will have jurisdiction

Basic rule for Jurisdiction within the UK under Sch 4, Rule 2 Civil Jurisdiction and Judgments Act 1982

If exclusive jurisdiction, jurisdiction agreements or submission do not apply, the starting point s that a person domiciled in a part of the UK should be sued in the courts at that part

Additional Jurisdiction under Sch 4, Rules 3 and 5 Civil Jurisdiction and Judgments Act 1982

• In matters relating to a contract in the courts for the place of performance of the obligation in question;  

• In matters relating to tort in the courts for the place where the harmful event occurred or may occur; 

• As regards a dispute arising out of the operations of a branch, agency or other establishment in the courts for the place in which the branch, agency or other establishment is situated; 

• Where the person is a number of defendants in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together; 

• On a counterclaim arising from the same contract or facts on which the original claim was based in the court in which the original claim is pending. 

Three types of admissible evidence

• Documents

• Witness Evidence (testimony)

• Real Evidence

Real Evidence

Real items that are adduced as evidence

Power of the court to control evidence under CPR 32.1

• Give directions as to issues requiring evidence, nature of evidence wanted and the way evidence is given

• Exclusion of evidence

• Limit cross examination

Court directions for Witness statements

• Limit the issues

• Identify witnesses whose evidence may be used

• Limit number, length or format of witness statements

• Specify order in which statements are to be served

Extending time for service of witness statement

28 days by mutual agreement without court approval (as long as it does not put the hearing at risk

Witness statments for interim applications under CPR 32.2(1)(b)

May given in writing as evidence althought cross examination may be applied for