CILEx L6 Civil Litigation Practice 2 — Questions and Answers
Question 1: What is the court's approach to costs budgeting under CPR Part 3 Section II, and what is the effect of an approved or agreed budget?
- Costs budgets are merely informative and have no binding effect
- The court manages litigation costs by approving budgets, and at assessment the court will not depart from the approved or agreed budget unless there is good reason to do so, as established in CPR r.3.18 (Correct answer)
- Costs budgets only apply to small claims track cases
- An approved budget guarantees that the successful party will recover the full amount budgeted
Correct answer: The court manages litigation costs by approving budgets, and at assessment the court will not depart from the approved or agreed budget unless there is good reason to do so, as established in CPR r.3.18
Under CPR r.3.12-3.18, parties in multi-track cases (except those in the Chancery Division or Commercial Court where otherwise directed) must file and exchange costs budgets. The court reviews and approves budgets at a costs management conference. Under r.3.18, when assessing costs on the standard basis, the court will not depart from the approved or agreed budget unless satisfied there is good reason to do so (Harrison v University Hospitals Coventry [2017]).
Question 2: In relation to expert evidence, what restrictions does CPR Part 35 impose and when will the court permit each party to instruct their own expert?
- Each party has an automatic right to instruct their own expert on any issue
- Expert evidence is restricted to that which is reasonably required to resolve proceedings; the court may direct a single joint expert and will only permit separate experts where it is necessary to do so, considering the overriding objective (Correct answer)
- Expert evidence is only permitted in personal injury cases
- The court cannot restrict the number of experts a party instructs
Correct answer: Expert evidence is restricted to that which is reasonably required to resolve proceedings; the court may direct a single joint expert and will only permit separate experts where it is necessary to do so, considering the overriding objective
CPR r.35.1 provides that expert evidence shall be restricted to that which is reasonably required. Under r.35.4, no party may call an expert or put an expert's report in evidence without the court's permission. Rule 35.7 empowers the court to direct a single joint expert (SJE). Separate experts are permitted where the complexity or value of the case requires it, but the court actively manages expert evidence to ensure proportionality.
Question 3: What are the grounds for appealing a decision of a first instance judge, and what test does the appeal court apply?
- An appeal may be brought on any ground of dissatisfaction with the lower court's decision
- Permission to appeal is required and will be 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; the appeal court will only allow an appeal where the decision was wrong or unjust due to serious procedural irregularity (Correct answer)
- Appeals are only permitted on points of law, not findings of fact
- Any party may appeal as of right within 28 days
Correct answer: Permission to appeal is required and will be 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; the appeal court will only allow an appeal where the decision was wrong or unjust due to serious procedural irregularity
Under CPR r.52.6, permission to appeal is required (with limited exceptions). Permission is granted where the appeal has a real prospect of success or there is some other compelling reason (r.52.6(1)). Under r.52.21(3), the appeal court will allow an appeal where the decision was (a) wrong, or (b) unjust because of a serious procedural or other irregularity. Appeals are reviews, not rehearings, unless the court considers a rehearing necessary (r.52.21(1)).
Question 4: What is the effect of a 'without prejudice' communication in civil litigation, and what are the exceptions to the without prejudice rule?
- Without prejudice communications are admissible in all circumstances
- Without prejudice communications made in a genuine attempt to settle a dispute are inadmissible as evidence of admissions, but exceptions include proving a concluded settlement (Tomlin order), rectification, estoppel, undue influence or fraud, and determining costs under Part 36 (Correct answer)
- The without prejudice rule only applies to written communications
- Without prejudice communications can never be disclosed, even with the consent of both parties
Correct answer: Without prejudice communications made in a genuine attempt to settle a dispute are inadmissible as evidence of admissions, but exceptions include proving a concluded settlement (Tomlin order), rectification, estoppel, undue influence or fraud, and determining costs under Part 36
The without prejudice rule (Unilever plc v Procter & Gamble Co [2000]) protects communications made in a genuine attempt to settle from being used as evidence of admissions. Exceptions recognised in Unilever include: proving a concluded settlement, estoppel, rectification, showing undue influence/perjury/fraud, explaining delay, and costs assessment. Both parties may also waive privilege jointly. The rule applies to oral and written communications.
Question 5: Under the Limitation Act 1980, what is the limitation period for a claim in negligence where the damage is latent and not discoverable at the time it occurred?
- Six years from the date of the negligent act with no extension possible
- Under s.14A, the claimant has either six years from the date of accrual or three years from the date of knowledge of the material facts, whichever expires later, subject to a longstop of fifteen years from the negligent act under s.14B (Correct answer)
- Three years from the date of the negligent act
- There is no limitation period for latent damage claims
Correct answer: Under s.14A, the claimant has either six years from the date of accrual or three years from the date of knowledge of the material facts, whichever expires later, subject to a longstop of fifteen years from the negligent act under s.14B
The Latent Damage Act 1986 inserted ss.14A and 14B into the Limitation Act 1980. Section 14A provides an alternative period of three years from the claimant's date of knowledge where the basic six-year period has expired. The date of knowledge is when the claimant first knew (or ought reasonably to have known) the material facts. Section 14B imposes an absolute longstop of fifteen years from the date of the negligent act or omission.
Question 6: What principles govern the court's decision on whether to grant a stay of proceedings to enforce an arbitration agreement under s.9 of the Arbitration Act 1996?
- The court has full discretion to refuse a stay if it considers court proceedings more appropriate
- The court must grant a mandatory stay of proceedings unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed (Correct answer)
- A stay is only granted if both parties agree to arbitration after proceedings have been issued
- The court will only stay proceedings if the arbitration clause covers all issues in dispute
Correct answer: The court must grant a mandatory stay of proceedings unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed
Section 9 of the Arbitration Act 1996 provides that where proceedings are brought in respect of a matter which the parties have agreed to submit to arbitration, the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed. The stay is mandatory, not discretionary, reflecting the UK's pro-arbitration policy and obligations under the New York Convention.
CILEx L6 Civil Litigation Practice 2
What is the court's approach to costs budgeting under CPR Part 3 Section II, and what is the effect of an approved or agreed budget?