Legal Practice Course (LPC) Litigation and Dispute Resolution Flashcards

24 sample cards from the Litigation and Dispute Resolution deck

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

1. 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.

2. 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).

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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).

9. 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.

10. 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).

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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).

18. 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).

19. 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.

20. 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).

21. 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).

22. 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.

23. 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.

24. 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.

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