CILEx L6 Civil Litigation Procedure 2 — Questions and Answers
Question 1: What are the requirements for a 'Part 36 offer' to have its cost consequences?
- It must be in writing, state it is made pursuant to Part 36, be open for 21 days, and specify a monetary sum or non-monetary terms for settlement (Correct answer)
- Any written offer made before trial attracts Part 36 consequences
- The offer must be accepted within 14 days
- The offer must be filed with the court to be effective
Correct answer: It must be in writing, state it is made pursuant to Part 36, be open for 21 days, and specify a monetary sum or non-monetary terms for settlement
A valid Part 36 offer (CPR r.36.5) must: be in writing, state it is made pursuant to Part 36, specify a period of not less than 21 days for acceptance, state whether it relates to the whole claim or part, and state whether it takes into account any counterclaim.
Question 2: What happens if a claimant fails to beat a defendant's Part 36 offer at trial?
- The claimant is generally ordered to pay the defendant's costs from the expiry of the relevant period, plus interest on those costs (Correct answer)
- The claimant automatically loses the case
- The claim is struck out
- The defendant must pay the claimant's costs up to the date of the offer
Correct answer: The claimant is generally ordered to pay the defendant's costs from the expiry of the relevant period, plus interest on those costs
If a claimant fails to obtain a judgment more advantageous than the defendant's Part 36 offer, the court will generally order the claimant to pay the defendant's costs from the expiry of the offer period, plus interest on those costs at up to 10% above base rate (CPR r.36.17).
Question 3: What is 'costs budgeting' (Costs Management Order) under the CPR?
- A process on the multi-track where parties file costs budgets in advance and the court manages recoverable costs, restricting recovery to the approved budget (Correct answer)
- A system requiring all litigation to be conducted for a fixed fee
- A costs order made at the end of trial
- A requirement for all parties to obtain ATE insurance before litigation
Correct answer: A process on the multi-track where parties file costs budgets in advance and the court manages recoverable costs, restricting recovery to the approved budget
Costs management under CPR Part 3 and PD 3E requires parties on the multi-track (generally claims over £25,000) to file and exchange costs budgets. The court approves budgets and at the end of the case, costs recovery is limited to the approved budget unless there is good reason to depart.
Question 4: What is the test for granting an interim injunction under American Cyanamid v Ethicon [1975]?
- Is there a serious question to be tried? If so, would damages be an adequate remedy? If not, does the balance of convenience favour granting the injunction? (Correct answer)
- Is the claimant's case so strong that they will almost certainly succeed at trial?
- Has the defendant admitted or acknowledged the claimant's right?
- Does the public interest clearly favour granting the injunction?
Correct answer: Is there a serious question to be tried? If so, would damages be an adequate remedy? If not, does the balance of convenience favour granting the injunction?
American Cyanamid [1975] AC 396 established the three-stage test for interim injunctions: (1) serious question to be tried (not just arguable), (2) if the claimant could be adequately compensated by damages, no injunction needed, and (3) if not, does the balance of convenience (or 'balance of justice') favour granting the injunction?
Question 5: What is 'judgment in default' under CPR Part 12?
- Judgment entered by the claimant if the defendant fails to file an acknowledgement of service or defence within the prescribed periods (Correct answer)
- Judgment given by a judge without a hearing
- Judgment where only one party appears at trial
- Judgment entered following failure to comply with an unless order
Correct answer: Judgment entered by the claimant if the defendant fails to file an acknowledgement of service or defence within the prescribed periods
Under CPR Part 12, if the defendant fails to file an acknowledgement of service within 14 days or a defence within 28 days (or 14 days after the acknowledgement), the claimant may apply for judgment in default of acknowledgement of service or defence.
Question 6: What is the purpose of a 'case management conference' (CMC)?
- A hearing at which the court reviews the parties' conduct of the case, gives directions, and ensures the case is on track for trial within appropriate time and costs limits (Correct answer)
- A meeting between solicitors to discuss settlement
- A hearing at which witness statements are exchanged
- A preliminary hearing to determine whether the claim should proceed to trial
Correct answer: A hearing at which the court reviews the parties' conduct of the case, gives directions, and ensures the case is on track for trial within appropriate time and costs limits
A CMC (CPR Part 29) is a hearing at which the judge reviews progress, deals with any outstanding issues, gives directions to trial (including exchange of witness statements and expert evidence), and addresses costs budgets. It is a key part of multi-track management.
CILEx L6 Civil Litigation Procedure 2
What are the requirements for a 'Part 36 offer' to have its cost consequences?