Legal Practice Course (LPC) Litigation and Dispute Resolution Syllabus

On what grounds may a default judgment be set aside?

It must be set aside if wrongly entered (mandatory, CPR 13.2). The court may set it aside (discretionary, CPR 13.3) if the defendant has a real prospect of successfully defending the claim, or there is some other good reason; the court considers whether the application was made promptly.

What is the test for summary judgment under CPR Part 24?

The court may give summary judgment against a claimant or defendant if that party has no real prospect of succeeding on/successfully defending the claim or issue, and there is no other compelling reason why the case should be disposed of at trial. 'Real' means more than fanciful (Swain v Hillman).

Distinguish default judgment from summary judgment.

Default judgment is entered administratively because the defendant failed to respond in time (no consideration of merits). Summary judgment is a judicial determination on the merits that a claim or defence has no real prospect of success; it may be sought by either party after a response has been filed.

What are the three types of statement of case and the function of each?

Particulars of claim (sets out the claimant's case and remedies); defence (responds to each allegation - admit, deny with reasons, or require proof); and reply (claimant's response to the defence, optional). Counterclaims, additional (Part 20) claims and further information also form part of the statements of case.

When may a party amend a statement of case under CPR 17?

Before service - freely. After service - only with the written consent of all parties or the court's permission. The court may allow amendment subject to conditions and costs; amendments after the limitation period are restricted to new claims arising out of the same or substantially the same facts (CPR 17.4).

What is a directions questionnaire and what is its purpose?

A form sent to the parties after a defence is filed, used by the court to allocate the case to a track and give case management directions. It addresses settlement/ADR, the appropriate track, disclosure, witnesses, experts, trial estimates and costs budgets (in multi-track cases).

What case management directions are typically given on allocation to the fast/multi-track?

A timetable for standard disclosure, exchange of witness statements, exchange of experts' reports, completion of pre-trial checklists, and the trial window/date. Multi-track cases may have a case management conference (CMC) and require costs budgets (Precedent H).

What is the procedure for making an interim application, and what documents are required?

File an application notice (Form N244) stating what order is sought and why, supported by evidence (usually a witness statement or the application notice itself if verified by a statement of truth). The application notice and evidence must generally be served on the respondent at least 3 clear days before the hearing.

When may an interim application be made without notice (ex parte), and what duty does the applicant owe?

Where there is exceptional urgency, secrecy is essential (e.g. freezing or search orders), or no time to give notice. The applicant owes a duty of full and frank disclosure - to disclose all material facts including those adverse to the application - and the respondent may apply to set aside the order.

What is a freezing injunction, and what must an applicant establish?

A freezing injunction (formerly Mareva) restrains a respondent from dealing with or dissipating assets pending judgment/enforcement. The applicant must show: a good arguable case on the merits, that the respondent has assets within the jurisdiction, and a real risk that those assets will be dissipated to defeat enforcement. The applicant must usually give a cross-undertaking in damages.

What is a search order, and what conditions must be satisfied?

A search order (formerly Anton Piller) permits entry to premises to search for and preserve evidence/property at risk of destruction. Conditions (Anton Piller KG v Manufacturing Processes): an extremely strong prima facie case; very serious actual or potential damage; clear evidence the respondent has incriminating items and a real possibility of their destruction. It is supervised by an independent supervising solicitor.

What is the American Cyanamid test for granting an interim injunction?

American Cyanamid v Ethicon: (1) is there a serious question to be tried? (2) would damages be an adequate remedy for either party? (3) where does the balance of convenience lie? The court also considers preserving the status quo. The applicant gives a cross-undertaking in damages.

What is security for costs and when may it be ordered against a claimant?

An order requiring a claimant to provide security (e.g. payment into court) for the defendant's costs, so the defendant can recover them if successful. Grounds (CPR 25.13) include: the claimant is resident outside the jurisdiction (of a non-reciprocating state); is a company with reason to believe it cannot pay; has changed address to evade consequences; or took steps to make enforcement difficult. It must also be just to make the order.

What sanctions may follow non-compliance with a rule, practice direction or court order, and how is relief obtained?

Sanctions include costs orders, strike-out, debarring orders, or an 'unless order' leading to automatic dismissal/judgment. To obtain relief from sanctions, the party applies under CPR 3.9; the court applies the Denton test: (1) is the breach serious or significant? (2) why did it occur? (3) all the circumstances, dealing justly with the application and enforcing compliance.

What is 'standard disclosure' and what categories of documents must be disclosed?

Under CPR 31.6, standard disclosure requires a party to disclose: the documents on which it relies; documents which adversely affect its own case, adversely affect another party's case, or support another party's case; and documents it is required to disclose by a relevant practice direction. 'Document' means anything in which information is recorded.

What is the standard of the search required for disclosure, and how is disclosure verified?

A party must make a reasonable and proportionate search (CPR 31.7), considering the number of documents, the nature and complexity of proceedings, ease/expense of retrieval, and significance of documents. Disclosure is made by serving a list (Form N265) with a disclosure statement signed by the party confirming the extent of the search and understanding of the duty.

What is the right to inspect disclosed documents, and what may prevent inspection?

A party generally has a right to inspect a disclosed document (CPR 31.3). Inspection may be withheld where the document is no longer in the party's control, where it would be disproportionate, or where a right or duty to withhold inspection applies - chiefly legal professional privilege (legal advice privilege and litigation privilege) or 'without prejudice' protection.

Distinguish legal advice privilege from litigation privilege.

Legal advice privilege protects confidential communications between lawyer and client for the purpose of giving or obtaining legal advice (no litigation needed). Litigation privilege protects confidential communications between the client/lawyer and third parties where the dominant purpose is litigation that is in progress or reasonably contemplated.

What is the function and required content of a witness statement?

A witness statement is the equivalent of the oral evidence the witness would give in chief; exchanged before trial, it stands as evidence-in-chief. It must be in the witness's own words, in the first person, contain only facts within the witness's knowledge, identify the source of any matters of information or belief, and be verified by a statement of truth.

What is the consequence of failing to serve a witness statement within the time set by the court?

Under CPR 32.10, if a witness statement for use at trial is not served within the time specified, the witness may not be called to give oral evidence unless the court gives permission (requiring an application for relief from sanctions under the Denton principles).

What is the overriding duty of an expert witness, and to whom is it owed?

An expert's overriding duty is to help the court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying the expert. Expert evidence is restricted to what is reasonably required and may only be given with the court's permission.

What is a single joint expert (SJE) and when is one typically used?

An SJE is a single expert instructed jointly by both parties to report on an issue (CPR 35.7). The court may direct an SJE, especially on the fast/intermediate track or where the issue is not central/contentious, to save costs. Both parties may give instructions; the costs are usually shared.

What is the procedure for a party to ask questions of an expert's report?

Under CPR 35.6, a party may put written questions to another party's expert (or an SJE) once, within 28 days of service of the report, for the purpose of clarifying the report. The answers form part of the report. If an expert fails to answer, the court may rule that the instructing party cannot rely on the evidence or recover the fees.

What is a pre-trial checklist (listing questionnaire), and what is its purpose?

A pre-trial checklist (Form N170) is completed by the parties at the date set by the court before trial, confirming compliance with directions, whether further directions are needed, witness/expert availability, trial time estimate and that the case is ready. It enables the court to confirm the trial date and give final listing directions.

What is a trial bundle, who prepares it, and when must it be filed?

An indexed, paginated bundle of the documents needed for trial (statements of case, witness statements, experts' reports, disclosed documents, orders). The claimant generally prepares it, agreeing contents with other parties, and files it with the court not more than 7 and not less than 3 days before the start of the trial (CPR 39.5).

Describe the usual order of proceedings at a civil trial.

Claimant's opening (sometimes dispensed with); claimant's evidence (witness statements stand as evidence-in-chief, then cross-examination and re-examination); defendant's evidence similarly; closing submissions (defendant then claimant, or as directed); judgment; then submissions on costs and any consequential orders.

What is a Part 36 offer and what are its key formal requirements?

A Part 36 offer is a formal settlement offer carrying automatic costs consequences. It must: be in writing, state it is made under Part 36, specify a 'relevant period' of not less than 21 days during which the defendant would be liable for the claimant's costs if accepted, state whether it relates to the whole or part of the claim, and whether it takes into account any counterclaim.

What are the costs consequences if a claimant fails to beat a defendant's Part 36 offer at trial?

If the claimant fails to obtain a judgment more advantageous than the defendant's Part 36 offer, the claimant is normally ordered to pay the defendant's costs from the end of the relevant period, plus interest on those costs, unless it would be unjust (CPR 36.17). The claimant still recovers its own costs up to the end of the relevant period.

What enhanced consequences apply where a defendant fails to beat a claimant's own Part 36 offer?

Where judgment is at least as advantageous to the claimant as its own Part 36 offer, the court normally orders (CPR 36.17): interest on damages of up to 10% above base rate from the end of the relevant period; costs on the indemnity basis from that date; interest on costs up to 10% above base rate; and an additional amount of 10% of damages up to £500,000 plus 5% of any excess (capped at £75,000).

Distinguish the standard basis from the indemnity basis of costs assessment.

On the standard basis, the court allows costs that are proportionate and reasonably incurred; doubts about reasonableness or proportionality are resolved in favour of the paying party. On the indemnity basis, the court allows costs that are reasonably incurred; proportionality does not apply and doubts are resolved in favour of the receiving party - so it usually yields a higher recovery.

What is costs budgeting (Precedent H) and when does it apply?

In most multi-track cases the parties file and exchange costs budgets (Form Precedent H) before the first CMC, setting out incurred and estimated future costs by phase. The court reviews them and may make a costs management order recording agreed/approved budgets. At assessment the court will not depart from the last approved/agreed budget without good reason (CPR 3.18).

Distinguish summary assessment from detailed assessment of costs.

Summary assessment is carried out by the judge immediately at the end of a hearing (usually for hearings of a day or less), fixing the costs there and then using a costs statement (N260). Detailed assessment is a separate later process conducted by a costs officer, commenced by a notice of commencement and bill of costs, used for larger or trial costs.

What permission is required to appeal a civil decision, and how is it obtained?

Permission to appeal is generally required (CPR 52.3). It may be requested orally at the hearing from the court below, or by applying to the appeal court in the appellant's notice. Permission is granted only where the appeal has a real prospect of success or there is some other compelling reason for it to be heard.

On what grounds may an appeal be allowed, and what is the time limit for filing the appellant's notice?

An appeal is allowed where the decision was wrong (in law, fact, or exercise of discretion) or unjust because of a serious procedural or other irregularity (CPR 52.21). The appellant's notice must usually be filed within 21 days of the decision (or such period as the lower court directs). Appeals are normally a review, not a rehearing.

List the principal methods of enforcing a money judgment in the County Court/High Court.

Taking control of goods (warrant of control / writ of control via enforcement officers); third party debt order (freezing money owed to the debtor, e.g. bank accounts); charging order over land/securities (with possible order for sale); attachment of earnings order; and, for information, an order to obtain information from the judgment debtor.

What is a charging order and how is it enforced to realise payment?

A charging order secures a judgment debt against the debtor's interest in land or securities, creating an equitable charge (CPR 73). It is obtained in two stages: an interim charging order then a final charging order. To obtain payment, the creditor may apply for an order for sale of the charged property.

What are a suspect's key rights when advised at the police station under PACE 1984?

The right to free and independent legal advice; the right to have someone informed of their arrest (s.56); the right to consult the PACE Codes of Practice; the right to be told the offence and grounds for detention; and protections on detention time limits, treatment, and the conduct of interviews (caution, recording, appropriate adult for vulnerable suspects).

What inferences may be drawn from a suspect's silence under the Criminal Justice and Public Order Act 1994?

Adverse inferences may be drawn where the suspect: fails to mention when questioned a fact later relied on in defence which they could reasonably have been expected to mention (s.34); fails to account for objects, substances or marks (s.36); or fails to account for their presence at a place (s.37). No conviction may be based solely on such an inference, and no inference arises if no prior legal advice was available.

Classify criminal offences by mode of trial and explain each category.

Summary-only offences are tried only in the magistrates' court (e.g. most motoring offences, common assault). Either-way offences may be tried in the magistrates' court or the Crown Court (e.g. theft, ABH). Indictable-only offences must be tried in the Crown Court (e.g. murder, robbery, rape).

What is the allocation procedure for an either-way offence (plea before venue)?

The defendant first indicates a plea. If guilty, the magistrates proceed to sentence (or commit for sentence if their powers are insufficient). If not guilty/no indication, the court conducts an allocation hearing, considering whether its sentencing powers are adequate and the allocation guideline. If the court accepts jurisdiction, the defendant may still elect Crown Court trial by jury.

What is the statutory presumption regarding bail and the Bail Act 1976?

There is a general right to (presumption of) bail under s.4 of the Bail Act 1976. Bail may be refused on the statutory grounds in Schedule 1 - principally substantial grounds for believing the defendant would fail to surrender, commit further offences, or interfere with witnesses/obstruct justice - or where it is necessary for the defendant's own protection.

What conditions may be attached to bail and what is the remedy if bail is refused?

Conditions (to address the bail grounds) may include residence, reporting to a police station, a curfew, a surety or security, surrender of passport, or non-contact with witnesses. If bail is refused by the magistrates, the defendant may apply again, and ultimately appeal/apply to the Crown Court for bail.

What is the maximum custodial sentence the magistrates' court can impose, and what is 'committal for sentence'?

For a single either-way offence the magistrates' maximum is generally 6 months' custody (12 months for two or more either-way offences). Where their sentencing powers are inadequate, they may commit the defendant to the Crown Court for sentence under the Sentencing Act 2020, where the higher maxima apply.

Outline the structure of a Crown Court trial on indictment.

Arraignment (defendant pleads to the indictment); jury empanelment (12 jurors sworn); prosecution opening and evidence (with cross-examination); submission of no case to answer (if made); defence case and evidence; closing speeches (prosecution then defence); judge's summing-up and directions of law; jury deliberation and verdict; then sentencing if convicted.

What are the five statutory purposes of sentencing for adults (Sentencing Act 2020, s.57)?

(1) Punishment of offenders; (2) reduction of crime (including by deterrence); (3) reform and rehabilitation of offenders; (4) protection of the public; and (5) making reparation by offenders to persons affected by their offences.

Explain how a sentencing court determines the appropriate sentence using guidelines and the custody threshold.

The court follows the relevant Sentencing Council guideline: it assesses offence category by culpability and harm to set a starting point and range, then adjusts for aggravating and mitigating factors. A custodial sentence may only be imposed if the offence is so serious that neither a fine nor a community sentence can be justified (the custody threshold). Credit is given for a guilty plea (up to one-third for the earliest plea).

What is ADR, what are its main forms, and what is the duty to consider it?

Alternative Dispute Resolution is methods of resolving disputes other than court adjudication. Main forms: negotiation, mediation, conciliation, early neutral evaluation, expert determination, adjudication and arbitration. The CPR and protocols require parties to consider ADR; unreasonable refusal to engage can result in costs sanctions (Halsey v Milton Keynes; and the court can now order parties into ADR following Churchill v Merthyr Tydfil).

What are the key features and advantages of mediation?

Mediation is a flexible, voluntary process in which a neutral third party (the mediator) facilitates negotiation to help the parties reach their own settlement; the mediator does not impose a decision. Advantages: confidential and 'without prejudice', preserves business relationships, flexible/creative remedies, faster and cheaper than trial, and gives the parties control over the outcome.

How is confidentiality protected in mediation?

Mediation is conducted on a 'without prejudice' basis, so communications generally cannot be referred to in court if it fails. The mediator keeps separate confidences from private caucus sessions unless authorised to disclose. A settlement reached becomes binding once recorded in a written agreement (or consent order if proceedings are on foot).

What are the key principles of arbitration under the Arbitration Act 1996?

Section 1 sets out the founding principles: the object is fair resolution by an impartial tribunal without unnecessary delay or expense; the parties are free to agree how disputes are resolved subject to safeguards in the public interest; and the court should not intervene except as provided by the Act. Arbitration is consensual, the award is final and binding, and it is readily enforceable internationally (New York Convention).

On what limited grounds may an arbitral award be challenged in court under the Arbitration Act 1996?

(1) Challenge to the tribunal's substantive jurisdiction (s.67); (2) serious irregularity affecting the tribunal, proceedings or award causing substantial injustice (s.68); and (3) appeal on a point of law (s.69), which can be excluded by agreement and otherwise needs agreement of the parties or the court's permission.

Compare arbitration with litigation as means of dispute resolution.

Arbitration: private and confidential, parties choose the tribunal, flexible procedure, award is final with very limited appeal rights, internationally enforceable under the New York Convention - but can be costly and lacks full appeal. Litigation: public, judge imposed by the state, governed by the CPR, full rights of appeal, binding precedent, and coercive enforcement powers - but slower, public, and less flexible.

What is early neutral evaluation (ENE), and how does it differ from mediation and arbitration?

ENE is a process where an independent, experienced neutral (often a judge or senior lawyer) gives a non-binding assessment of the merits or likely outcome to help the parties settle. Unlike mediation, the evaluator gives an opinion on the merits rather than merely facilitating; unlike arbitration, the evaluation is non-binding and does not determine the dispute.