Law Analysis Clause Samples
Law Analysis. [10] In its objection, the Claimant stated that pursuant to Part 33.8 of the CPR, the Court can order a party to appoint a single expert but that this rule will not apply unless the Court applies the test laid out in ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ v ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Ors7. [11] Part 33.8 states as follows: 7 CA P277 of 2012.
1) The court may order a party—
a) to arrange for an expert to prepare a report on any matter and, if appropriate, to arrange for an examination to be carried out in relation to that matter; and
b) to file the report and serve a copy on any other party.
2) On giving such a direction, the Court may—
a) identify the person who is to prepare the report; and
b) specify which party is to be responsible for the cost of preparing it.
3) The court’s powers under this rule may be exercised only on the application of a party.
1) No party may call an expert witness or put in an expert’s report without the court’s permission.
2) The general rule is that the court’s permission should be given at a case management conference.
3) The court may give permission on or without an application.
4) No oral or written expert’s evidence may be called or put in unless the party wishing to call or put in that evidence has served a report of the evidence which the expert intends to give.
5) The court must direct by what date such report must be served.
6) The court may direct that that evidence be given by one or more experts—
a) chosen by agreement between the parties;
b) appointed by the court; or
c) appointed in such way as the court may direct.
7) The court may direct that part only of an expert’s report be disclosed.
Law Analysis. [10] The sole issue to be decided is whether the Defendant’s Application for Budgeted Costs should be granted. The Defendant, in support, relied on several authorities in its submissions. In my review of them, it is clear that there are no set factors which the Court must account for when deciding whether to apply a costs budget to a matter. Rather, there is much discretion in the Court so long as, in accordance with the Overriding Objective, it is of the opinion that prescribed costs will not, due to the size and/or complexity of the matter, properly account for the recoverable costs. Thus, the purpose of budgeted costs is to assist the parties in setting a budget realistic to the nature of the proceedings. [11] In an earlier decision of this Court1, I relied on learning from the text Review of Civil Procedure2 and the case of National Insurance Board v National Insurance Appeals 1 ▇▇▇▇▇▇ ▇▇▇▇▇ & Anor v the A.G of T & T CV2014-03454 2 By ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Tribunal3 to discuss the law on budgeted costs. ▇▇ ▇▇▇▇▇▇▇▇▇▇, the initial draughtsman of the CPR, stated as follows: “The aim would be that the fixed costs regime, properly constructed, should cover some 85 – 90% of all litigation. However, there will be cases in which the low amount of the claim masks considerable complication of law and/or facts. These are mainly those types of cases which I describe as complex cases…In such cases the fixed costs might well not be appropriate. Hence my suggestion that the parties could agree, or one party could apply at the case management conference, for a budget to be fixed for the case.” [12] In my view, as I stated in ▇▇▇▇▇▇ ▇▇▇▇▇ supra, what ▇▇ ▇▇▇▇▇▇▇▇▇▇ envisioned was that Budgeted Costs applications would usually be used for cases where one or both parties wished to increase the sum recoverable in costs due to the novelty and/or complexity of the case. However, the philosophy behind budgeted costs was always, to my mind, to contain costs and thus, arrive at a figure that would not be exceeded by the successful party. In my view therefore, budgeted costs are quite similar to the English equivalent— cost-capping orders, which similarly attempt to allow the parties to set an upper limit of what they believe to be reasonable costs for the nature of the matter. Cost capping orders are provided for in Part 3.1 (2) (ll) of the UK CPR4 under the Court’s general powers of management, which allows the Court to “order any party to file or exchange a costs budget.” [13] Acc...
Law Analysis. [30] Accordingly, before the Court are two Applications for determination— the Claimant’s Application for Summary Judgment and the Defendant’s Application to Strike Out the Claimant’s Claim. Each Application shall be dealt with in turn. T he Claimant’s Application for Summary Judgment: [31] Part 15 of the CPR sets out the procedure by which the Court may decide a claim or part of a claim without a trial i.e. by summary judgment. The grounds for summary judgment are set out in Part 15.2, which allows same to be granted if the Court considers that—
a) “On an application by the claimant, the defendant has no realistic prospect of success on his defence to the claim, part of claim or issue…”
Law Analysis