CILEx L6 Civil Litigation Practice — Questions and Answers
Question 1: Under the Civil Procedure Rules, what is the overriding objective and how does it affect the court's case management powers?
- To ensure that the wealthiest party prevails
- To deal with cases justly and at proportionate cost, including ensuring parties are on an equal footing, saving expense, dealing with cases proportionately, ensuring expedition and fairness, and allotting an appropriate share of court resources (Correct answer)
- To ensure all cases proceed to a full trial
- To maximise the recovery of costs by successful parties
Correct answer: To deal with cases justly and at proportionate cost, including ensuring parties are on an equal footing, saving expense, dealing with cases proportionately, ensuring expedition and fairness, and allotting an appropriate share of court resources
CPR r.1.1 establishes the overriding objective: dealing with cases justly and at proportionate cost. This includes ensuring parties are on an equal footing (r.1.1(2)(a)), saving expense (r.1.1(2)(b)), proportionality (r.1.1(2)(c)), expedition and fairness (r.1.1(2)(d)), and allotting appropriate court resources (r.1.1(2)(e)). The court must give effect to the overriding objective when exercising any power or interpreting any rule (r.1.2).
Question 2: What are the Pre-Action Protocol requirements in civil litigation and what is the consequence of failing to comply?
- Pre-Action Protocols are optional guidelines with no consequences for non-compliance
- Pre-Action Protocols require parties to exchange information, consider ADR, and attempt to resolve disputes before issuing proceedings; non-compliance may result in adverse costs orders or case management sanctions (Correct answer)
- Pre-Action Protocols only apply to personal injury claims
- Failure to comply with a Pre-Action Protocol results in automatic dismissal of the claim
Correct answer: Pre-Action Protocols require parties to exchange information, consider ADR, and attempt to resolve disputes before issuing proceedings; non-compliance may result in adverse costs orders or case management sanctions
Pre-Action Protocols (and the Practice Direction on Pre-Action Conduct) require parties to exchange relevant information and documents, consider appropriate ADR, and attempt to settle before litigation. Under CPR r.44.3(5)(a) and the Practice Direction, the court can impose costs sanctions for non-compliance, including ordering the non-compliant party to pay costs on an indemnity basis, depriving them of interest, or staying proceedings.
Question 3: In multi-track litigation, what factors does the court consider when deciding whether to grant summary judgment under CPR Part 24?
- Whether the claim is complex enough to warrant a trial
- Whether the claimant or defendant has no real prospect of succeeding on the claim or defence, and there is no other compelling reason why the case should proceed to trial (Correct answer)
- Whether the parties have exchanged all relevant documents
- Whether mediation has been attempted
Correct answer: Whether the claimant or defendant has no real prospect of succeeding on the claim or defence, and there is no other compelling reason why the case should proceed to trial
Under CPR r.24.2, the court may give summary judgment if it considers that (a) the claimant has no real prospect of succeeding on the claim or issue, or (b) the defendant has no real prospect of successfully defending the claim or issue, AND (c) there is no other compelling reason why the case or issue should be disposed of at trial. The test is whether the claim/defence is 'fanciful' rather than merely improbable (Swain v Hillman [2001]).
Question 4: What is the standard disclosure obligation under CPR Part 31, and how has it been modified for cases in the Business and Property Courts?
- All documents in a party's possession must be disclosed regardless of relevance
- Standard disclosure requires disclosure of documents on which a party relies, documents that adversely affect their case or support another party's case; in the Business and Property Courts, the Disclosure Pilot (now Practice Direction 57AD) introduced issue-based disclosure with multiple models (Correct answer)
- Disclosure is entirely voluntary in all civil proceedings
- Only documents that support a party's own case need be disclosed
Correct answer: Standard disclosure requires disclosure of documents on which a party relies, documents that adversely affect their case or support another party's case; in the Business and Property Courts, the Disclosure Pilot (now Practice Direction 57AD) introduced issue-based disclosure with multiple models
Standard disclosure under CPR r.31.6 requires disclosure of documents on which a party relies, documents adversely affecting their own case or another party's case, or supporting another party's case. Practice Direction 57AD (initially the Disclosure Pilot Scheme) replaced standard disclosure in the Business and Property Courts with Extended Disclosure, offering five models ranging from no disclosure to train-of-inquiry disclosure, tailored to the issues in dispute.
Question 5: Under CPR Part 36, what are the costs consequences if a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer?
- The claimant pays all costs of the entire proceedings
- The claimant is generally ordered to pay the defendant's costs from the date on which the relevant period expired, on the standard basis if not agreed, and is entitled to their own costs up to that date (Correct answer)
- There are no costs consequences for failing to beat a Part 36 offer
- The claimant must pay the defendant's costs on an indemnity basis from the start of proceedings
Correct answer: The claimant is generally ordered to pay the defendant's costs from the date on which the relevant period expired, on the standard basis if not agreed, and is entitled to their own costs up to that date
Under CPR r.36.17(3), where a claimant fails to obtain a judgment more advantageous than a defendant's Part 36 offer, the court will normally order the claimant to pay the defendant's costs from the expiry of the relevant period, unless it considers it unjust to do so. The claimant is entitled to their own costs up to that date. This creates a powerful incentive to accept reasonable offers.
Question 6: What is the test for obtaining a freezing injunction (formerly Mareva injunction) and what must the applicant demonstrate?
- The applicant must only show they have issued proceedings
- The applicant must demonstrate a good arguable case on the merits, a real risk that the respondent will dissipate assets to frustrate enforcement of a judgment, and that it is just and convenient to grant the order; the applicant must also give a cross-undertaking in damages (Correct answer)
- The applicant must prove their case on the balance of probabilities before the injunction will be granted
- A freezing injunction is available automatically once judgment has been obtained
Correct answer: The applicant must demonstrate a good arguable case on the merits, a real risk that the respondent will dissipate assets to frustrate enforcement of a judgment, and that it is just and convenient to grant the order; the applicant must also give a cross-undertaking in damages
Following The Niedersachsen [1983] and Fourie v Le Roux [2007], the applicant must show: (1) a good arguable case; (2) assets within the jurisdiction (or worldwide assets in appropriate cases); (3) a real risk of dissipation; (4) that it is just and convenient to grant relief. The applicant must provide full and frank disclosure (a duty of utmost good faith) and give a cross-undertaking in damages to compensate the respondent if the injunction proves unwarranted.
CILEx L6 Civil Litigation Practice
Under the Civil Procedure Rules, what is the overriding objective and how does it affect the court's case management powers?