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

24 sample cards from the Civil Procedure and Higher Courts (Civil Proceedings) deck

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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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).

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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).

What this deck covers

Civil Procedure and Higher Courts (Civil Proceedings) flashcards FAQ