Bar Professional Training Course (BPTC) Civil Litigation, Evidence and Remedies Flashcards

24 sample cards from the Civil Litigation, Evidence and Remedies deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What is a freezing injunction (formerly Mareva injunction) and what must an applicant show?

   A freezing injunction restrains a respondent from dealing with or dissipating assets pending judgment/enforcement. The applicant must show: a good arguable case on the substantive claim; that the respondent has assets (within or outside the jurisdiction); and a real risk that those assets will be dissipated/removed so as to render any judgment unenforceable. The applicant must give full and frank disclosure and usually a cross-undertaking in damages.

2. What is a search order (formerly Anton Piller order) and its four classic requirements?

   A search order permits the applicant to enter the respondent's premises to search for and preserve evidence/property. The American Cyanamid/Anton Piller requirements: (1) an extremely strong prima facie case; (2) serious actual or potential damage to the applicant; (3) clear evidence the defendant possesses incriminating documents/things; and (4) a real possibility the defendant would destroy that material before an inter partes application. Granted under s.7 Civil Procedure Act 1997.

3. State the American Cyanamid v Ethicon guidelines for granting an interim injunction.

   (1) Is there a serious question to be tried (not frivolous/vexatious)? (2) Would damages be an adequate remedy for the claimant if refused; if so, refuse. (3) Would the cross-undertaking in damages adequately compensate the defendant if granted? (4) Where there is doubt, where does the balance of convenience lie? (5) If balanced, preserve the status quo; the relative strength of each case may be considered as a last resort.

4. What is the default standard for disclosure under CPR Part 31 and what does 'standard disclosure' require?

   In multi-track (non-business) cases standard disclosure under r.31.6 requires a party to disclose: the documents on which it relies; documents that 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. Disclosure means stating that a document exists or has existed (r.31.2).

5. What is the duty of a 'reasonable search' and the continuing nature of disclosure under Part 31?

   Under r.31.7 a party must make a reasonable search for documents falling within standard disclosure, proportionate to the number of documents, the nature/complexity of the proceedings, ease/expense of retrieval and significance of documents. The duty of disclosure is continuing until proceedings conclude (r.31.11), so documents later coming to a party's notice must be disclosed.

6. Distinguish legal advice privilege from litigation privilege.

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

7. What is the procedure and form for disclosure, and what is the right of inspection?

   Disclosure is made by serving a list of documents (form N265) with a disclosure statement signed by the disclosing party certifying the extent of the search and understanding of the duty. A party then has a right to inspect any disclosed document except where it is no longer in the disclosing party's control, the party has a right/duty to withhold inspection (e.g. privilege), or inspection would be disproportionate (r.31.3).

8. What are the formal requirements and function of a witness statement under CPR Part 32?

   A witness statement is the equivalent of the oral evidence the witness would give and stands as their evidence-in-chief (r.32.5). It must be in the witness's own words, in the first person, state the witness's address and occupation, indicate which statements are from the witness's own knowledge and which from information/belief (with sources), and be verified by a statement of truth (PD 57AC applies to trial witness statements in the Business and Property Courts).

9. What is the consequence of failing to serve a witness statement within the time set by the court (r.32.10)?

   If a witness statement (or summary) for use at trial is not served within the time specified by the court, the witness may not be called to give oral evidence unless the court gives permission (r.32.10). The defaulting party would typically need relief from sanctions applying the Denton test.

10. State the overriding duty of an expert witness and to whom it is owed (CPR Part 35).

    Under r.35.3, an expert has an overriding duty to help the court on matters within their expertise, and this duty OVERRIDES any obligation to the person from whom the expert receives instructions or by whom they are paid. The expert must provide objective, unbiased opinion within their area of expertise and not assume the role of advocate.

11. What permission and control does the court exercise over expert evidence under r.35.4?

    No party may call an expert or put in an expert's report without the court's permission (r.35.4(1)). When seeking permission the party must identify the field, the issues to be addressed and (where practicable) the name of the expert and the estimated costs. The court may limit recoverable expert fees and may direct a single joint expert (r.35.7).

12. What must an expert's report contain under CPR PD 35?

    Details of the expert's qualifications; the substance of all material instructions; the literature/material relied on; who carried out any tests; a summary of the range of opinion and reasons for the expert's own opinion; a summary of conclusions; a statement that the expert understands and has complied with their duty to the court; and a statement of truth in the prescribed form.

13. What is a 'without prejudice' statement under r.35.10, and the procedure for written questions to experts?

    The instructions to an expert are not privileged but the court will not order disclosure of them unless there are reasonable grounds to consider the expert's statement of instructions inaccurate/incomplete (r.35.10(4)). Under r.35.6, a party may put written questions to another party's expert (or a single joint expert) once, within 28 days of service of the report, for the purpose only of clarification, and the answers form part of the report.

14. State the burden and standard of proof in civil cases.

    The legal (persuasive) burden generally lies on the party asserting a fact — typically the claimant for the elements of the claim and the defendant for any positive defence. The standard of proof is the balance of probabilities, i.e. it is more likely than not that the fact is true ($P > 0.5$). There is no heightened standard for serious allegations such as fraud (Re B), though stronger evidence may in practice be needed.

15. What is the legal effect of the maxim 'res ipsa loquitur' on the burden of proof?

    Res ipsa loquitur ('the thing speaks for itself') is an evidential principle allowing an inference of negligence where the cause of an accident is unknown, the thing causing harm was under the defendant's control, and the accident is of a kind that does not ordinarily happen without negligence. It does not reverse the legal burden; it raises an inference the defendant must counter, but the legal burden of proving negligence remains on the claimant.

16. What is the effect of s.11 Civil Evidence Act 1968 on a relevant criminal conviction in later civil proceedings?

    Under s.11 Civil Evidence Act 1968, a subsisting criminal conviction is admissible in civil proceedings as evidence that the convicted person committed the offence. The conviction creates a rebuttable presumption: the person is taken to have committed the offence unless the contrary is proved, effectively reversing the burden onto the convicted party to disprove it.

17. What is a pre-trial review and the function of a trial bundle?

    A pre-trial review (PTR) is a hearing in heavier multi-track cases to check readiness, finalise directions, the timetable and trial length. The trial bundle (lodged usually 3-7 days before trial per PD 32) is the indexed, paginated set of documents (statements of case, orders, witness statements, expert reports, relevant disclosed documents) for use at trial; the claimant is normally responsible for filing it.

18. What is a 'Civil Restraint Order' and the three types?

    A Civil Restraint Order (CRO) restrains a party who issues claims/applications that are totally without merit. The three types (PD 3C): a Limited CRO (restrains further applications in the particular proceedings); an Extended CRO (restrains issuing claims/applications concerning any matter involving or relating to the proceedings, up to 3 years); and a General CRO (restrains issuing any claim/application in specified courts, up to 3 years).

19. Distinguish the standard basis from the indemnity basis of costs assessment, including the treatment of doubt and proportionality.

    On the STANDARD basis (r.44.3(2)) costs must be proportionate and reasonably incurred/reasonable in amount; any doubt is resolved in favour of the PAYING party; costs disproportionate in amount may be disallowed even if reasonably/necessarily incurred. On the INDEMNITY basis (r.44.3(3)) costs must be reasonable; any doubt is resolved in favour of the RECEIVING party; proportionality does NOT apply. The default order is the standard basis.

20. State the general rule on costs and the factors the court considers when deciding what order to make.

    The general rule (r.44.2(2)) is that the unsuccessful party pays the successful party's costs ('costs follow the event'), but the court may make a different order. Relevant factors (r.44.2(4)-(5)) include the conduct of the parties, whether a party succeeded on part of the case, and any admissible offer to settle (including Part 36 offers and conduct in relation to ADR).

21. What is Qualified One-Way Costs Shifting (QOCS) and its main exceptions?

    QOCS (CPR rr.44.13-44.17) applies to personal injury claims: a claimant who loses is generally protected from paying the defendant's costs (orders can be made but enforced only up to the level of damages and interest awarded to the claimant). Protection is lost where the claim is struck out (no reasonable grounds/abuse), or the claim is found on the balance of probabilities to be fundamentally dishonest, or it is made for another's financial benefit.

22. What permission is required to appeal and what are the two grounds for allowing an appeal (CPR Part 52)?

    Permission to appeal is generally required and is granted only where the court considers the appeal has a real prospect of success OR there is some other compelling reason for it to be heard (r.52.6). An appeal will be allowed where the decision of the lower court was (a) wrong (in law, fact or exercise of discretion) or (b) unjust because of a serious procedural or other irregularity (r.52.21(3)).

23. State the default time limit for filing an appellant's notice and the nature of an appeal hearing.

    Unless the lower court directs otherwise (or another period is specified by rule), the appellant's notice must be filed within 21 days of the decision being appealed (r.52.12). An appeal is generally a review of the lower court's decision, not a rehearing, and new evidence is admitted only exceptionally (applying Ladd v Marshall principles).

24. Name and briefly describe four principal methods of enforcing a money judgment.

    (1) Writ/warrant of control — enforcement agents (bailiffs) seize and sell the debtor's goods. (2) Third party debt order (CPR Part 72) — freezes and pays over money owed to the debtor by a third party (e.g. a bank). (3) Charging order (Part 73) — secures the judgment debt against the debtor's land/securities, potentially followed by an order for sale. (4) Attachment of earnings order — deductions made directly from the debtor's wages by the employer.

What this deck covers

Civil Litigation, Evidence and Remedies flashcards FAQ