Civil Litigation flashcards

33 cards. Read the term and the definition here. The deck at the top of this page is optional.

Claim form validity

A claim form must be served within four months of issue, or six months if served outside the jurisdiction; extension requires a court order sought before the deadline expires.

Limitation periods

Contract claims expire after six years, tort after six years, personal injury after three years from knowledge, and defamation after one year; issue proceedings before the period expires.

Acknowledgment of service

A defendant acknowledging service within fourteen days of particulars extends the deadline to file a defence to twenty-eight days from service of the particulars of claim.

Deemed service by post

A claim form sent by first-class post is deemed served on the second business day after posting; the deemed date, not actual receipt, starts the defendant's response clock.

Service out of jurisdiction

Claimants need court permission unless a jurisdictional gateway applies, and must show a serious issue to be tried and that England is the proper place to bring the claim.

Forum non conveniens stay

A defendant may seek a stay arguing another forum is clearly more appropriate; the defendant bears the burden and the court weighs connecting factors and the interests of justice.

Overriding objective

The court must deal with cases justly and at proportionate cost, actively managing cases by identifying issues early, encouraging settlement, and fixing timetables for the parties.

Unless order effect

An unless order is a conditional strike-out; if the stated condition is not met, the sanction takes effect automatically, and relief requires an application under the relief-from-sanctions rule.

Summary judgment test

The court may enter summary judgment where a party has no real prospect of succeeding on the claim or defence and there is no other compelling reason for a trial.

Standard disclosure scope

A party discloses documents it relies on, documents adversely affecting its own or another party's case, and documents supporting another party's case, including those within its control.

Legal professional privilege

Advice privilege protects confidential lawyer-client communications for legal advice; litigation privilege protects documents created for the dominant purpose of litigation. Privileged documents are not disclosable.

Norwich Pharmacal order

A court order compelling a third party mixed up in wrongdoing to disclose information, typically the identity of a wrongdoer, to enable the applicant to bring proceedings.

Interim injunction test

The American Cyanamid test asks whether there is a serious issue to be tried, whether damages are an adequate remedy, and where the balance of convenience lies; a cross-undertaking is required.

Freezing injunction

An order restraining a party from dealing with assets, granted where there is a real risk of dissipation; it is usually made without notice and followed by a return date.

Security for costs

An order requiring a claimant to provide security for the defendant's costs, available where the claimant is abroad, impecunious, or unlikely to satisfy an adverse costs order.

Balance of probabilities

The civil standard of proof: the party asserting a fact must show it is more likely than not; serious allegations such as fraud may require stronger evidence.

Expert's overriding duty

An expert's duty is to the court, not the instructing party; the expert must give independent, objective opinion evidence and sign a statement of truth.

Hearsay in civil cases

Hearsay evidence is admissible in civil proceedings, but the court weighs it and may attach less weight; procedural notice requirements can apply to reliance on it.

Judgment interest rate

A money judgment carries interest at the judgment rate, currently eight per cent per annum, running from the date judgment is given unless the court orders otherwise.

Third-party debt order

An order freezing money owed to a judgment debtor by a third party such as a bank, made provisionally and then made final after a hearing, enabling payment to the creditor.

Charging order

An order securing a judgment debt against the debtor's interest in land or securities; once registered it can lead to an order for sale of the charged asset.

Appeal time limit

An appellant's notice must usually be filed within twenty-one days of the order or judgment appealed against; extending that period requires an application supported by evidence.

Permission to appeal test

Permission is granted only where the appeal has a real prospect of success or there is some other compelling reason; the appeal court reviews rather than rehears the evidence.

Fresh evidence on appeal

Admitted only if it could not have been obtained with reasonable diligence for the original hearing, would probably have changed the result, and is credible.

Part 36 offer

A settlement offer with costs consequences: a claimant who beats its own offer recovers indemnity costs and enhanced interest, while a claimant who fails to beat a defendant's offer suffers penalties.

Indemnity basis costs

Costs assessed with any doubt resolved in favour of the receiving party; awarded where conduct is exceptional, such as unreasonable refusal to settle or improper behaviour.

Conditional fee agreement

An agreement where the lawyer's fee is payable only on success, often with a success fee; the success fee is generally not recoverable from the opponent in ordinary civil litigation.

Particulars of claim timing

Particulars must be served with the claim form, or within fourteen days after service of the claim form, and in any event before the claim form's service period expires.

Submission to jurisdiction

A defendant contesting jurisdiction must apply promptly and avoid steps amounting to submission; filing a defence on the merits may constitute submission to the court's jurisdiction.

Costs budget effect

An approved costs budget caps recoverable costs unless the court varies it; failing to file a budget can limit the defaulting party to recovering court fees only.

Specific disclosure

An application requiring a party to disclose or produce specified documents where standard disclosure was inadequate; non-compliance can lead to an unless order or strike-out.

Interim payment

An order requiring a defendant to pay part of the likely damages before trial, available where liability is admitted or the claim has a real prospect of success and means to pay.

Setting aside default judgment

An application must be made promptly and show a real prospect of successfully defending the claim or another good reason; the court has discretion to set the judgment aside.