Legal Q&A

Clare Ambrose, Twenty Essex The party’s representative should liaise with the witness and the other side. It should seldom be impossible to resolve matters by arranging for evidence to be given remotely. Such an approach is fairly standard practice......

General principles—privilege and confidentiality One of the trickier problems a practitioner encounters during litigation, especially at the disclosure stage of proceedings, is protecting a client’s confidential documents and information from review by other parties and from being put before the court. A principal way to secure protection for material relevant to a dispute is to assert that it is privileged. Once it is established that a document is privileged, the holder acquires a right to refuse inspection of that document. For wider guidance on the meaning and effects of privilege, see Practice Note: Privilege—general principles. Crucially, merely labelling a document ‘privileged’ does not settle its status. To benefit from this special protection—allowing a client to maintain confidentiality and withhold inspection of a relevant document—the criteria for one of the recognised forms of privilege must actually be satisfied (see below). More generally, for a claim to...

At the heart of the query lies the status of a party who does not adhere to a court direction, yet has lodged an application to extend the time for compliance before the expiry of the deadline attached to that direction. On the scenario set out, the claimant will be in breach of the court order concerning the exchange of witness statements in two weeks’ time, because that order will not have been varied before the deadline for compliance under that order......

Money Claim Online is available for issuing claims for a defined monetary amount below £100,000, excluding interest and costs. The approach to costs mirrors that applied to any other claim brought under CPR Part 7. The fixed costs regime A claim falls within the fixed costs regime where no acknowledgement of service or defence is lodged, or where the defendant admits the claim. In that situation, the claimant may seek judgment through Money Claim Online by submitting the online request form. Once judgment is entered, the claimant’s legal representative is entitled to the fixed costs under CPR 45.4, as listed in Table 2 of CPR 45, which, for a claim over £5,000, range from £30 to £70 depending on the circumstances in which judgment is obtained......

The issue here is between ‘a claim for personal injuries’, and ‘a claim in negligence or in battery’ This distinction confuses the category of harm (and the relief for it) with the juridical basis of liability. ‘ Personal injury’ is not a tort at all—it is a type of harm flowing from a tort, which in turn generates a legal entitlement to redress. It must be differentiated from other forms of physical harm—for example, loss to property—and from other tortious invasions of personal rights (for instance, the reputational harm occasioned by the tort of defamation). The former labels damage; the latter names the actionable wrong......

Background Part 20 exists to ensure counterclaims and other additional claims are handled in the most practical and efficient way ( CPR 20). Claim The route for any counterclaim varies according to whether proceedings are under Part 7 or Part 8. A probate claim must be started under the Part 7 procedure ( CPR 57.3(b)). For Part 57 purposes, a ‘probate claim’ covers an application for a decree affirming or denying the validity of a purported will ( CPR 57.1(2)(a)(iii)). Counterclaim Where a defendant maintains that they have any claim concerning the grant of probate of the deceased person’s Will, they must advance that position by serving a counterclaim ( CPR 57.8(1))......

Changes to CPR PD 22 took effect on 6 April 2020. The revisions modified the mandated wording for the statement of truth that authenticates documents to be deployed in civil proceedings. Nevertheless, under both the old and new versions the signatory must still confirm their belief that the 'contents' of the pertinent documents are true—or, under the updated formula, that the 'facts stated' in the relevant document are true......

CPR 31.10 contains provisions for the disclosure of documents by way of a list. Obligations to disclose continue until the case is concluded. If additional documents are discovered after a list has been served, a supplementary list must be provided ( CPR PD 31A, para 3.3). For broader guidance on disclosure, see Practice Notes: Disclosure under CPR 31—introduction and Disclosure—standard disclosure and the reasonable search. When issuing directions, the court will fix the deadline by which the list must be served on the other party. CPR 31.21: a party cannot rely on a document it has not disclosed unless the court grants permission. CPR 32.10 (witness statements) and CPR 35.13 (experts’ reports) are framed so that, upon default, court permission is required to adduce or rely on that evidence. This points to an application for permission, rather than an...

For this Q& A, it is assumed that the claim continues within the Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol). Pre- Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol) Under paragraph 3.1, the Protocol’s objectives are to ensure that: the defendant meets damages and costs through the process prescribed by the Protocol, without the claimant having to issue proceedings; damages are paid within a reasonable period; and the claimant’s legal representative is paid the fixed costs at each relevant stage. Accordingly, the aims do not extend to circumstances in which a defendant may recover costs......

An unincorporated association is not a legal entity In principle, it lacks legal personality and therefore cannot bring or face proceedings in its own name; this was the stance in London Association for Protection of Trade v Greenlands Limited. The position was examined in detail in Chancellor, Masters and Scholars of the University of Oxford v Broughton, a matter arising from a campaign by the Animal Liberation Front and related bodies. The conventional course is to seek a representation order, allowing a named member or office-holder to be joined as a party ‘on behalf of the members of the association’. Yet time pressures—particularly an approaching limitation deadline—may make obtaining such an order impracticable, prompting a prospective claimant to ask whether the association can be joined in its own name. As recorded in University of Oxford, there have been instances where the court has in fact made orders...

What is a DCFA? Most practitioners know the ‘pure’ CFA, commonly referred to as a ‘no win, no fee’ agreement. Working under a pure CFA, the lawyer or legal representative is remunerated only upon a win, as the CFA expressly defines it. If that outcome is not achieved, no fee is payable for the professional work undertaken on the matter. For additional detail, see the subtopic: CFAs and DBAs for further information. A DCFA is often described as a ‘no win, lower fee’ arrangement in contrast to the pure CFA. Under a DCFA, the client agrees to meet the lawyer’s fees in full on success; if the case fails, a reduced fee is payable to the representative. The role of success fees Success fees exist to ensure a solicitor’s portfolio of CFA-backed litigation can operate at nil net loss overall. Put...

If the claimant qualifies as a protected party within the Court of Protection’s remit, fees imposed by that Court, both historic and prospective, may properly form part of the claim made. Further charges will also be incurred where a deputy is appointed to manage the claimant’s property and financial affairs. These charges and expenses can be set out within the schedule of past and future loss and damage as distinct heads of damage......

In occupational disease matters, it is common that the claimant was employed many years ago by an entity that has ceased trading, changed its name, or shifted liabilities within intricate corporate groups. Defence solicitors may challenge the identity of any proposed defendant within their defence, and resolving such questions well before the commencement of proceedings is always desirable. Accurately naming the parties to the claim from the outset is particularly important in order to avoid incurring unnecessary costs later on, for example in having to discontinue against a party and/or amend the claim form, and to prevent any potential problems in respect of limitation......

Clare Ambrose, Twenty Essex The clear benefit is that the hearing can proceed and the dispute be determined, which is the tribunal’s fundamental objective. The tribunal’s obligation to be fair to both sides does not compel an in-person hearing; if suitable arrangements permit the hearing to happen, that will be a weighty factor in favour. There is also a possible gain in cost efficiency: although premium technology may incur expense, savings on hearing venues and travel and hotel accommodation could be substantial. Virtual hearings remain relatively novel, so practice is evolving to manage practicalities and logistics across the board. The range of technological solutions is broad and warrants careful review and thorough investigation by the parties involved. For the hearing to run smoothly, every participant in the arbitration should trial their equipment in the precise location from which their virtual hearing will (for each of them) be...

Both sides must record their agreement or dispute within a costs budget discussion report ( Costs Precedent R)...

Pre- Action Protocol for Debt Claims The Pre- Action Protocol for Debt Claims (the Protocol) took effect on 1 October 2017. When the Protocol applies, the court expects parties to adhere to its requirements before issuing a claim, and will factor in any failure when setting directions for the conduct of any later proceedings (see paragraph 7 of the Protocol). There are no transitional arrangements within the Protocol. Refer to: Precedent: Letter of claim—contractual debt claim—in compliance with the Pre- Action Protocol for Debt Claims; and Practice Notes: The pre-action protocols and when they apply, and Debt claims and pre-action conduct......

We have been unable to locate any case law on the exact matter raised in your query at this time. Nevertheless, please kindly consider the following further details, which you may find helpful. When the Pre- Action Protocol for Debt Claims (the Protocol) applies The Pre- Action Protocol for Debt Claims (effective from 1 October 2017) is engaged when a business—such as a sole trader or public body—seeks recovery of a debt from an individual, including a sole trader. It is inapplicable to business-to-business debts except where the debtor is a sole trader ( Pre- Action Protocol for Debt Claims, para 1.1)......

Where the claimant trades as a sole proprietor, the assessment of losses is essentially a calculation of net earnings from self-employment, after deducting all overheads, tax, and similar items from their total gross takings for the year......

When a defendant defeats a claim, the default position is that the claimant must meet the defendant’s legal costs arising from the claim. Yet CPR 44.2(1)(a) gives the court freedom to decide if, and by whom, costs should be paid. In proceedings with multiple defendants, that discretion allows the court to order an unsuccessful co-defendant, instead of the claimant, to bear the successful defendant’s costs in such circumstances as appropriate......

The Mental Capacity Act 2005 ( MCA 2005) The MCA 2005 established a new assessment of mental capacity, which should generally serve as the primary point of reference when determining a person’s capacity. It consolidates the common law and does not explicitly overturn it......