Solicitors' Higher Rights of Audience Qualification Civil Procedure and Higher Courts (Civil Proceedings) Syllabus

Define an interim injunction and the statutory source of the court's power to grant one.

An interim injunction is a court order requiring a party to do (mandatory) or refrain from doing (prohibitory) a specified act, pending trial. The power derives from s.37(1) of the Senior Courts Act 1981, allowing the court to grant an injunction where it is just and convenient.

State the American Cyanamid guidelines for granting an interim injunction.

From American Cyanamid v Ethicon [1975]: (1) is there a serious question to be tried? (2) would damages be an adequate remedy for the claimant? (3) if not, would the claimant's cross-undertaking adequately compensate the defendant? (4) where doubt remains, where does the balance of convenience lie? (5) other factors, including preserving the status quo, may be considered.

What is a 'cross-undertaking in damages' and why is it required for an interim injunction?

It is an undertaking by the applicant to compensate the respondent for any loss caused by the injunction if it is later found the injunction should not have been granted. It is normally required as the price of obtaining an interim injunction to protect the respondent against wrongly granted relief.

Define a freezing injunction (Mareva) and the two key conditions for granting one.

A freezing injunction restrains a respondent from dealing with or dissipating assets pending judgment/enforcement. The applicant must show (1) a good arguable case on the substantive claim, and (2) a real risk that the respondent will dissipate or remove assets so as to render a judgment unenforceable. Full and frank disclosure is also required.

Define a search order (Anton Piller) and its statutory basis.

A search order permits the applicant's representatives to enter the respondent's premises to search for, inspect, copy and preserve evidence or property, to prevent its destruction. Its statutory basis is s.7 of the Civil Procedure Act 1997. It is granted without notice and supervised by an independent supervising solicitor.

State the three conditions for granting a search order from Anton Piller v Manufacturing Processes.

(1) An extremely strong prima facie case; (2) the potential or actual damage to the applicant must be very serious; and (3) clear evidence that the respondent has incriminating documents or items and a real possibility they may be destroyed before an on-notice application can be made.

What is an interim payment and the principal condition under CPR 25 for ordering one?

An interim payment is an advance payment on account of damages or debt a defendant may be ordered to pay before final judgment. The court may order it where the defendant has admitted liability, judgment has been obtained for damages to be assessed, or the court is satisfied the claimant would obtain judgment for a substantial sum of money at trial.

What is security for costs and a key gateway condition under CPR 25.13?

Security for costs is an order requiring a claimant to provide security (e.g. a payment into court) to cover the defendant's costs if the claim fails. Conditions include: the claimant is resident outside the jurisdiction (in a non-Hague Convention state), the claimant is a company with reason to believe it cannot pay the defendant's costs, the claimant has taken steps to make enforcement difficult, or has given an incorrect address. The court must also be satisfied it is just to make the order.

What is an interim declaration and an injunction to deliver up goods, as examples of interim remedies?

An interim declaration is a temporary statement of the parties' rights pending trial. An order for delivery up of goods requires a party to hand over specified goods or property. Both are listed interim remedies under CPR 25.1, which sets out the full menu of available interim remedies.

How should an advocate structure submissions at a contested interim hearing?

Identify the order sought and the rule relied on; summarise the relevant facts from the evidence; state the applicable legal test (e.g. American Cyanamid); apply the test to the facts; address the respondent's likely points and proportionality/overriding objective; and conclude with the precise terms of the draft order and any consequential matters (costs, permission).

At an interim hearing, what is the usual costs order and what does it mean?

The usual order on a contested interim application is 'costs in the case' (the costs of the application follow the outcome of the final case) unless conduct or the nature of the application justifies an immediate order such as 'costs in any event' for the successful party. Where summarily assessed, costs are payable within 14 days under CPR 44.7.

What is the significance of a witness statement's 'statement of truth' on an interim application?

Evidence on interim applications is given by witness statement which must be verified by a statement of truth (CPR 22). A false statement made without an honest belief in its truth may give rise to proceedings for contempt of court. The statement of truth confirms the maker believes the facts stated are true.

List the key components of pre-trial preparation on the multi-track.

Compliance with directions and the case management timetable; disclosure and inspection of documents; exchange of witness statements; exchange of expert reports and any experts' discussion; agreeing the trial bundle; preparing skeleton arguments; lodging the pre-trial checklist (listing questionnaire); attending any pre-trial review; and ensuring the trial fee is paid.

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

The pre-trial checklist (Form N170) is filed by the parties at the date set in the directions to confirm compliance with directions, identify outstanding matters, provide witness/expert details and a trial time estimate. It enables the court to check readiness for trial, fix a trial date/window and give any further directions.

What is the standard of disclosure on the multi-track and the test for 'standard disclosure'?

Standard disclosure (CPR 31.6) requires a party to disclose the documents on which it relies, those that adversely affect its own or another party's case, those that support another party's case, and those it is required to disclose by a relevant practice direction. Disclosure is governed by a duty of reasonable search (CPR 31.7).

What is a trial bundle and who is responsible for preparing it?

The trial bundle is the agreed, paginated and indexed collection of documents (statements of case, orders, witness statements, experts' reports, disclosure relied on, and correspondence) for use at trial. Under CPR 39.5 the claimant must file it not more than 7 and not less than 3 days before the start of the trial.

Describe the typical running order of a civil trial.

Preliminary matters and housekeeping; claimant's opening (and possibly defendant's); claimant's evidence (examination-in-chief, usually witness statements standing as evidence-in-chief, cross-examination, re-examination); defendant's evidence in the same way; closing submissions (defendant then claimant, or as directed); judgment; and consequential matters including costs.

What is the difference between examination-in-chief, cross-examination and re-examination?

Examination-in-chief is questioning of a party's own witness to elicit their evidence (usually the witness statement stands as this). Cross-examination is questioning of the opposing party's witness, where leading questions are permitted and credibility/inconsistencies are tested. Re-examination is limited questioning by the calling party to clarify matters arising in cross-examination; no new matters or leading questions.

What is the burden and standard of proof in a civil trial?

The legal burden of proof generally rests on the claimant for the elements of the claim (and on the defendant for any positive defence). The standard of proof is the balance of probabilities, meaning a fact is proved if it is more likely than not (i.e. probability greater than $\tfrac{1}{2}$) to have occurred.

What is the rule on putting your case to a witness in cross-examination (the rule in Browne v Dunn)?

The rule in Browne v Dunn requires an advocate to put to a witness any matter on which that witness's account is challenged, so the witness has the opportunity to respond. Failure to challenge evidence may be taken as acceptance of it, and a court may be slow to reject unchallenged evidence.

What is a 'judgment' and the distinction between a reserved and an extempore judgment?

A judgment is the court's final, reasoned decision determining the issues and the relief granted. An extempore judgment is delivered orally immediately at the conclusion of the hearing; a reserved judgment is one the judge takes time to consider and hands down later, often in writing, after circulating a draft to the parties in confidence.

What 'consequential matters' typically arise after judgment is given?

The form of the order; interest on damages; costs (including the basis of assessment, summary assessment or a payment on account); permission to appeal and any stay of execution pending appeal; time for compliance/payment; and any further directions. These are usually dealt with immediately after judgment is delivered.

What is the court's power to award interest on a judgment debt and damages?

For High Court judgment debts, interest accrues under the Judgments Act 1838 at 8% per annum. The court may also award interest on damages (e.g. under s.35A Senior Courts Act 1981 for debt/damages) for the period from accrual of the cause of action to judgment, at a rate in the court's discretion.

State the 'general rule' on costs between the parties under CPR 44.2.

The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party ('costs follow the event'). However, the court retains a discretion to make a different order having regard to the conduct of the parties, partial success, and any admissible offers to settle.

Compare the 'standard basis' and 'indemnity basis' of assessing costs.

On the standard basis (CPR 44.3(2)), costs must be proportionate and reasonably incurred and reasonable in amount, with any doubt resolved in favour of the paying party; proportionality can override reasonableness. On the indemnity basis (CPR 44.3(3)), costs must be reasonably incurred and reasonable in amount, with doubt resolved in favour of the receiving party, and proportionality does not apply — generally producing a higher recovery.

What factors does the court consider in deciding the amount of costs (the 'pillars of wisdom') under CPR 44.4?

The conduct of the parties; the value of any money or property involved; the importance of the matter to the parties; the complexity, difficulty or novelty of the issues; the skill, effort, specialised knowledge and responsibility involved; the time spent; the place and circumstances of the work; the receiving party's last approved/agreed budget; and any relevant pre-action protocol conduct.

How is 'proportionality' of costs defined under CPR 44.3(5)?

Costs are proportionate if they bear a reasonable relationship to: the sums in issue; the value of any non-monetary relief; the complexity of the litigation; any additional work generated by the paying party's conduct; and any wider factors such as reputation or public importance. Disproportionate costs may be disallowed even if reasonably or necessarily incurred.

What are the costs consequences of a claimant's Part 36 offer that the claimant beats at trial?

Under CPR 36.17, where a claimant obtains a judgment at least as advantageous as its own Part 36 offer, the court (unless unjust) awards the claimant: indemnity-basis costs from expiry of the relevant period; enhanced interest up to 10% above base rate on those costs and on the sum awarded; and an additional amount of 10% of the first £500,000 awarded plus 5% of any amount above that up to a cap of £75,000.

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

Under CPR 36.17, if the claimant fails to obtain a judgment more advantageous than the defendant's Part 36 offer, the court (unless unjust) orders the claimant to pay the defendant's costs from the date the relevant period expired, plus interest on those costs. The claimant typically recovers its own costs only up to expiry of the relevant period.

What is a costs budget and which form is used (Precedent H)?

A costs budget is a party's estimate of the costs it expects to incur in the litigation, broken down by phase. On the multi-track (subject to exceptions) parties must file and exchange budgets in Precedent H, usually not later than 21 days before the first case management conference (or with the directions questionnaire if the claim is under £50,000).

What is a costs management order (CMO) and its effect on later assessment?

A CMO records the extent to which budgets are agreed and, where not agreed, the court's approval of a revised budget. On detailed/standard-basis assessment the court will not depart from the last approved or agreed budget unless there is good reason to do so (CPR 3.18), giving parties costs certainty for incurred and budgeted phases.

What is 'Precedent R' and its role in costs budgeting?

Precedent R is the Budget Discussion Report. Each party must complete it to set out, for every phase of the opponent's budget, the figures it agrees, those it disagrees with, and its own offer. It must generally be filed and exchanged before the case management conference to focus the court on the disputed budget phases.

Distinguish summary assessment from detailed assessment of costs.

Summary assessment is a swift assessment by the trial/hearing judge immediately after the hearing, based on a statement of costs (Form N260), typically used for fast-track trials and interim applications lasting not more than one day. Detailed assessment is a separate, later procedure conducted by a costs officer/judge after the conclusion of proceedings, used for larger or more complex costs claims.

Outline the detailed assessment procedure and the key time limit for commencing it.

The receiving party serves a notice of commencement (Form N252) with a bill of costs within 3 months of the judgment/order. The paying party serves points of dispute within 21 days; the receiving party may serve replies within 21 days. Either party may then request a detailed assessment hearing within 3 months of expiry of the period for commencing. Provisional assessment applies to bills of £75,000 or less.

What is 'provisional assessment' and the relevant financial limit?

Provisional assessment (CPR 47.15) is a paper-based detailed assessment, without an oral hearing, used where the costs claimed do not exceed £75,000. The judge assesses on the documents; a party dissatisfied may request an oral hearing but risks paying the costs of that hearing unless it achieves an adjustment of 20% or more in its favour.

From which courts and to which courts do civil appeals generally lie?

Appeals from a District Judge in the County Court go to a Circuit Judge; from a Circuit Judge to a High Court Judge; from a High Court Judge to the Court of Appeal (Civil Division); and from the Court of Appeal to the Supreme Court. The Access to Justice Act 1999 (Destination of Appeals) Order governs the routes, subject to 'leapfrog' provisions.

What is the general test for permission to appeal under CPR 52.6?

Permission to appeal will be granted only where the court considers that the appeal would have a real prospect of success, OR there is some other compelling reason for the appeal to be heard. 'Real prospect' means realistic rather than fanciful.

From whom must permission to appeal be sought and within what time limit is an appellant's notice generally filed?

Permission may be sought first from the lower court at the hearing, and if refused, from the appeal court. The appellant's notice (Form N161) must generally be filed within 21 days of the decision being appealed (unless the lower court directs otherwise), and served on the respondent within 7 days of filing.

On what grounds may an appeal be allowed under CPR 52.21(3)?

An appeal will be allowed where the decision of the lower court was (a) wrong — in law, fact, or the exercise of discretion — or (b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court.

Is an appeal a rehearing or a review, and when is fresh evidence admitted?

Under CPR 52.21(1) every appeal is limited to a review of the lower court's decision unless a practice direction provides, or the court considers it would be in the interests of justice to hold a rehearing. Fresh evidence is admitted only in accordance with the Ladd v Marshall criteria: the evidence could not have been obtained with reasonable diligence for trial, it would probably have an important influence on the result, and it is apparently credible.

What is the 'leapfrog' appeal and its statutory basis?

A leapfrog appeal allows an appeal to bypass an intermediate court. Under the Administration of Justice Act 1969 a case may go directly from the High Court to the Supreme Court (with the trial judge's certificate and the Supreme Court's permission) where it raises a point of law of general public importance, typically on statutory construction or where bound by precedent.

What is the 'second appeals' test for appeals to the Court of Appeal under CPR 52.7?

Where a decision was itself made on appeal (a second appeal), the Court of Appeal will not give permission unless it considers that the appeal would raise an important point of principle or practice, OR there is some other compelling reason for the Court of Appeal to hear it. This is a higher threshold than the first-appeal test.

How is an appeal to the Supreme Court obtained and on what basis is permission granted?

An appeal to the Supreme Court (from the Court of Appeal, or via leapfrog) requires permission either from the Court of Appeal or, more usually, from the Supreme Court itself. Permission is granted only for arguable points of law of general public importance which ought to be considered by the Supreme Court at that time.

What is the effect of an appeal on the order being appealed, regarding stays?

Under CPR 52.16, an appeal does not operate as a stay of any order or decision of the lower court unless the appeal court or lower court orders otherwise. An appellant who wishes to suspend enforcement pending appeal must apply specifically for a stay of execution.

What are the powers of the appeal court under CPR 52.20?

The appeal court has all the powers of the lower court and may: affirm, set aside or vary any order or judgment; refer any claim or issue for determination by the lower court; order a new trial or hearing; make a costs order; and exercise its powers in relation to the whole or part of an order. It may also draw any inference of fact it considers justified.

What is a skeleton argument and its role in the conduct of an appeal?

A skeleton argument is a concise written summary of a party's submissions, the issues, and the legal authorities relied on, with cross-references to the appeal bundle. The appellant's skeleton accompanies or follows the appellant's notice; the respondent's skeleton responds. It frames the oral advocacy at the appeal hearing and must comply with CPR PD 52 requirements.

What is a respondent's notice and when must it be filed?

A respondent's notice (Form N162) is filed by a respondent who seeks to uphold the lower court's order for reasons different from those given by the lower court, or who seeks to vary the order (a cross-appeal). It must be filed within the period directed by the lower court or, if none, within 14 days of being served with the appellant's notice (or notification that permission has been granted).