1 - Introduction to DR

Question 1

What is a civil dispute resolution?

Answer 1

Resolving disputes between private parties, a claimant and a defendant, usually without the involvement of the state. The claimant typically seeks a remedy, often financial, from the defendant.

Examples include: Breach of contract and Personal injury claims.

DR includes alternative methods like negotiation or mediation. The term “civil dispute resolution” distinguishes it from criminal matters.

Question 2

What are the key stages of a civil claim?

Answer 2

Pre-action stage: Parties try to resolve the dispute before court proceedings through negotiation or pre-action protocols.

Statements of case stage: Claimant files a claim form and particulars of claim.
Defendant responds with an acknowledgment of service, defence, or counterclaim.

Case Management stage: The court allocates the case to a track (small claims, fast track, intermediate, or multi-track). Court issues directions for managing the case towards trial.

Evidence stage: Parties exchange relevant documents, witness statements, and expert reports.

Trial stage: Preparations for trial include finalising evidence.
The trial occurs, and the judge decides the facts and whether the claimant is entitled to relief.

Post-trial stage: Enforcement of court orders (e.g., payments) and the possibility of appeal.

Interim applications: Requests for court orders, such as extensions or evidence, may occur before or during the trial.

Question 3

What are the Civil Courts of England & Wales?

Answer 3

The County Court and the High Court are the courts of first instance - claims can be started in these courts, and appeals can occur here.

The Supreme Court and CoA only hear appeals. Claims are not started here. Appeals from the Appeal Tribunals (Upper, Employment Appeal, and Competition Appeal Tribunals) are heard in the CoA.

Question 4

How to decide whether to commence civil proceedings in the County or High Court?

Answer 4

1. Check specific legislation: If a law specifies a court, issue the claim there.
2. Personal injury (PI) claim under £50,000: Issue in the County Court. Over can be issued in either court.
3. Non-PI claim of £100,000 or less: Issue in the County Court.
4. High Court justification: If the claim’s financial value/amount in dispute, complexity of facts, or public importance justifies it, issue in the High Court. Otherwise, issue in the County Court.

Question 5

What is The County Court?

Answer 5

• There is one national County Court with 173 hearing centres across England and Wales.
• Administration of claims, including issuing money claims, can be handled centrally and/or online.
• Hearings can be held at a local hearing centre.
• The County Court does not have separate divisions.
• It is generally used for less complex, lower value claims where a specialist judge is not required.

Question 6

What is The High Court?

Answer 6

The High Court of Justice sits in the Royal Courts of Justice (RCJ) in London and in regional centres called District Registries. There are over 130 District Registries across the country.

Claims in London must be commenced at the RCJ, while other claims may start at the RCJ or a District Registry.

The High Court is divided into three divisions:
- Chancery Division
- King’s Bench Division
- Family Division (deals with matrimonial and related matters)

Question 7

What does The High Courts King Bench Division (KBD) deal with?

Answer 7

• General KBD list: Personal injury, professional negligence, breach of contract, debt recovery, and general claims not in specialist courts.
• Administrative Court: Judicial review of state actions and omissions.
• Planning Court: Planning permission, highways, rights of way, compulsory purchase orders.
• Commercial Court: Complex business disputes (e.g., arbitration, aviation, banking, fraud, insurance, shipping), often international.
• Circuit Commercial Courts: Commercial contracts, sale of goods, insurance, banking, professional negligence.
• Technology & Construction Court: Construction, engineering, IT, environmental issues, public procurement.
• Admiralty Court: Shipping and maritime matters.

Both courts hear Financial disputes of £50m or more in value, requiring particular judicial knowledge of financial markets.

Question 8

What does The High Court’s Chancery Division deal with?

Answer 8

• Insolvency and Companies List: Personal and corporate insolvency, shareholder disputes, directors’ disqualification, and applications under the Companies Act 2006.
• Revenue List: Taxation disputes involving major points of principle, with HMRC as a party.
• Competition List: Competition law cases.
• Business List: Disputes involving business structures, directors’ duties, breach of contract, tort, pensions, and financial services.
• Property, Trusts and Probate List: Landlord and tenant issues, estate administration, trust execution, charities, and probate.
• Intellectual Property List: Intellectual property disputes, including patents and registered designs.

Both courts hear Financial disputes of £50m or more in value, requiring particular judicial knowledge of financial markets.

Question 9

What do the CoA and Supreme Court do?

Answer 9

Court of Appeal: Based in London, it handles appeals across civil and criminal cases and is typically the final court for most cases.

Supreme Court: The highest UK court, it hears major appeals on issues of general public importance from across the UK.

Question 10

What is the Judge Hierarchy and how are each Judge addressed?

Answer 10

In order:

Supreme Court: Justices of the Supreme Court: “My Lord” or “My Lady”

Court of Appeal: Judges of the Court of Appeal: “My Lord” or “My Lady”

High Court: High Court Judges: “My Lord” or “My Lady”

High Court: Masters: “Judge”

County Court: Circuit Judges, Recorders (part-time Circuit Judges): “Your Honour”

District Judges, Deputy District Judges (part-time District Judges): “Judge”

Question 11

Who are the relevant judicial leaders in the judiciary?

Answer 11

Lord Chief Justice: The highest-ranking judge, representing the judiciary’s views to Parliament and Government and overseeing judicial welfare, training, and deployment.

Master of the Rolls: President of the Civil Division of the Court of Appeal, second in seniority to the Lord Chief Justice.

President of the Family Division: Head of Family Justice and a member of the Court of Appeal.

President of the King’s Bench Division: Head of the King’s Bench Division and a member of the Court of Appeal.

Chancellor of the High Court: Head of the Chancery Division and a member of the Court of Appeal.

Question 12

What are the Rights of Audience (advocacy) in the courts?

Answer 12

Magistrate’s Court, County Court, Tribunals, and Upper Tribunal: Solicitors can carry out advocacy in these courts and tribunals.

Higher Courts (High Court, Court of Appeal, Supreme Court): Solicitors are generally not authorised to carry out advocacy in these higher courts unless they obtain Higher Rights of Audience by undertaking specific training and passing assessments.

Question 13

What costs might a party incur in pursuing litigation?

Answer 13

Solicitor Fees: Charges for the solicitor’s work.

Court Fees: Paid for issuing claims, making applications, and hearing fees.

Counsel’s Fees: Costs for specialist advice or representation in court, often fixed or hourly.

Expert’s Fees: Costs for expert advice or evidence, such as medical opinions in personal injury cases.

Other Costs: Includes photocopying, travel costs, and search fees (e.g., Land Registry).

Each type of cost is essential for the litigation process and contributes to the overall expense of pursuing a claim.

Question 14

Why is a party at risk of being ordered to pay an opponents costs?

Answer 14

The court has the power to decide whether one party should pay the other party’s costs (CPR 44.2(1)) and how much should be paid.

The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.2(2)).

The discretionary factors the court considers include the conduct of the parties and whether a party has succeeded on all or only part of its case.

There is a limit on recovery; the court will determine the amount to be paid, allowing only a reasonable and proportionate sum to be recovered.

Question 15

What practical considerations should parties consider before starting litigation?

Answer 15

• How it will fund its own costs (you may be directed to a separate element relating to funding);
• How it will pay the opponent’s costs in the event the court orders it to do so;
• That even if successful, in the vast majority of cases it will only recover a proportion of its costs from the opponent, not all of them.

Question 16

How does the court approach inter-partes costs?

Answer 16

Inter-Partes Costs - The legal costs awarded by a court to one party (the winning party) to be paid by the other party (the losing party) in a case.

Identify who has won the case. The general rule is that the successful party should receive its costs from the unsuccessful party.

Assess whether any factors justify deviating from the general rule, such as the conduct of the parties.

If a party is to pay the other’s costs, only costs that are reasonable and proportionate will be allowed.

The final amount awarded for costs might be less than the actual costs incurred, reflecting what the court deems reasonable and proportionate.

Question 17

What is case analysis in DR?

Answer 17

An investigation of the legal issues, determining what must be proved or disproved, completed on behalf of client (whether claimant or defendant). Establishing the merits of the case.

Will help to:
- Inform the client’s decision to bring a claim (claimant) or respond to a claim.
- Inform the strategy for pursuing the clients case.
- Assist to estimate and budget costs.

Should be reviewed throughout the case to account for any changes in case law, emerging facts or evidence, and potential settlements.

Question 18

What are the elements of a case analysis?

Answer 18

1. Duty
   Did the defendant owe a duty to the claimant? E.g., a contract, express written or implied terms, a tortious duty (negligence) or a statutory duty?
2. Breach
   Is there a breach of contract or tortious duty or both?
3. Causation
   Did the breach of the duty cause the claimant a loss?
4. Loss
   Remedy sought: Was it foreseeable (i.e., not too remote), what is the amount of the loss?
5. Parties
   Who are the parties? Who should the claimant claim against? Are there any actual or potential defendants to the claim who the defendant might seek a contribution or indemnity from?
6. Limitation
   Any issues of limitation? E.g., starting the claim 3 years from the date of injury.

Question 19

Who does the burden of proof lie with in a civil claim?

Answer 19

The burden of proving any issue of fact or law generally falls on the party who asserts it.

E.g., Claimant: duty, breach, causation, loss.
Defendant: Contrib negligence (if any), why their version of the facts is correct.

Question 20

What is the standard of proof based on in a civil claim?

Answer 20

Proof on a balance of probabilities - A fact will be established if it is more likely than not to have happened, hence the claimant’s case is more probably true than not true.

What facts need to be proved - The facts in issue, shown by the two parties’ conflicting versions of events set out in the statements of case. It is important to define them early and clearly and to narrow them down if possible.

Question 21

When may courts treat matters as established without evidence being brought into court?

Answer 21

• Formal admissions: In the statements of case; or in response to a notice to admit facts (CPR 32.18)
• Presumptions: E.g., “the facts speak for themselves”. It signifies that further details are unnecessary, the facts of the case are self-evient.
• Inferences of fact: Common sense conclusions drawn from primary facts.

Question 22

What is the difference between solicitor / own costs and party / party costs?

Answer 22

Solicitor / own costs – Fees that a firm/solicitor charges its own clients, and which that client is liable to pay the firm pursuant to their individual fee agreement. Hand-holding that the client needs. E.g., if the client asks for something to be explained a number of times. It would not be right for the other side to pay this.

Party / Party costs - These are the fees and costs that one party might claim and recover from another party as part of any claim or settlement. In most cases, a client is unlikely to recover all of the costs that it has paid to its own solicitor.
Each cost has to be reasonably incurred.

Question 23

What are disbursements?

Answer 23

Money the solicitor pays on the clients behalf. Expenses paid by the firm to third parties.

Question 24

What is the purpose of The Civil Procedure Rules 1998?

Answer 24

Govern the process of litigation.

Question 25

What is the overriding objective of the CPR?

Answer 25

The overriding objective of the CPR is “to enable the court to deal with cases justly and at a proportionate cost” and the rule explains that this involves:

• Ensuring that the parties are on an equal footing.
• Saving expense.
• Dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.
• Ensuring the case is dealt with expeditiously and fairly.
• Allotting to each case an appropriate share of the court’s resources, taking into account the need to allot resources to other cases.
• Enforcing compliance with rules, practice directions and orders.
  (CPR 1.1)

Question 26

Who must give effect to the CPR’s overriding objective?

Answer 26

The court (CPR 1.2) which will actively manage the case to do so (encouraging co-operation, identifying key issues, making use of technology) (CPR 1.4) and the parties are required to help the court to further the overriding objective (CPR 1.3). Must be considered at all stages of litigation.

Question 27

What does the CPR state regarding the participation of vulnerable parties or witnesses?

Answer 27

Overriding Objective: Ensures parties and witnesses can participate fully in proceedings.

Definition of Vulnerability: Factors that may adversely affect participation, such as inability to understand proceedings, express oneself, respond to the court, attend hearings, or instruct a representative.

Causes of Vulnerability: Includes youth, language or communication difficulties, mental or physical disabilities, cultural circumstances, etc.

Court Measures:
- Identify the vulnerability of parties/witnesses.
- Give directions or make provisions to facilitate participation, such as extra time to comply, support at hearings, or specific advocacy conduct directions.

Question 28

What are the Practice Directions relating to the use of the Welsh language?

Answer 28

Scope: Applies to civil cases in Wales or connected to Wales.

Objective: Ensures equality of English and Welsh languages in the administration of justice in Wales.

Hearing Language: Hearings can be entirely in Welsh if all parties and witnesses consent at the time.

Notification: Inform the court if Welsh may be used by any party or witness in:

1. Directions questionnaire
2. Pre-trial checklist (listing questionnaire)
3. Interim hearing for case management directions

Court Arrangements:
Ensure the case is before a Welsh-speaking judge if practicable.
Court should have translation facilities.
Documents can be in English or Welsh.
Witnesses may be sworn in Welsh or English.

Costs: Costs orders may be made against a party who fails to comply with the PD.

Question 29

What happens if proceedings are not commenced within the relevant limitation period?

Answer 29

The claimant will be barred from recovering damages, and on this basis, the defendant will have a full defence.

Question 30

How long does a claimant have to bring a personal injury claim?

Answer 30

s11 the Limitation Act 1980 -
The claimant must bring the claim within 3 years of the latest of:
(a) The date when the cause of action accured; or
(b) The date of knowledge of the person injured.

s14 - Date of knowledge means knowing:
(a) That the injury was significant;
(b) That it was attributable (at least in part) to the alleged wrongdoing;
(c) The identity of the defendant;
(d) If it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person and the additional facts supporting bringing the claim against the defendant.

This includes knowledge which the claimant might reasonably have been expected to acquire from an expert/ facts observable/ ascertainable by them.

Question 31

What is the time limit for bringing a fatal accident claim?

Answer 31

Fatal Accidents Act 1976:
(a) The claim cannot be brought if the person injured could no longer bring a claim.
(b) The claim cannot be brought after 3 years from the later of:
(i) Date of death;
(ii) The date of knowledge of the dependent.

s14 - Date of knowledge means knowing:
(a) That the injury was significant;
(b) That it was attributable (at least in part) to the alleged wrongdoing;
(c) The identity of the defendant;
(d) If it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person and the additional facts supporting bringing the claim against the defendant.

This includes knowledge which the claimant might reasonably have been expected to acquire from an expert/ facts observable/ ascertainable by them.

Question 32

Can the courts extend time in relation to personal injury claims/under Fatal Accidents Act?

Answer 32

Yes, if that would be equitable, balancing the prejudice to the claimant caused by the limitation period with any prejudice to the defendant which allowing the claim would cause.

The courts will look at:
- The conduct of the parties.
- The reasons for the delay.
- The effect of such a late claim on the evidence.

Question 33

When can a person liable for damage claim a contribution from another person?

Answer 33

Claim against retailer for fauly product, retailer may be entitled to claim contribution towards liability from the manufacturer.

The limitation date is two years from the date on which the right to recover the contribution occured:
(a) The date when the judgment was given imposing liability on the first party (e.g, retailer)
(b) Where the first party agreed to make the payment (rather than judgment imposed on them), the date on which the amount to be paid was first agreed.

Question 34

What is the limitation period for negligence actions where facts relevant to the cause of action are unknown at the date of accrual?

Answer 34

E.g., House built negligently, does not show problems until 10 years later.

The limitation period is extended to:
(a) Six years from when the cause of action accrued: or
(b) Three years from when he had the requisite:
(i) Knowledge; and
(ii) Right to bring the claim (s14A)

This is subject to a long-stop limitation date of 15 years from the date of the latest negligent act/omission which caused all or part of the damage (s14B).

Knowledge is based on whether the claimant knows “the material facts about the damage in respect of which damages ar eclaimed” (s14A (6)).

This includes knowledge which the claimant might reasonably have been expected to acquire from an expert/ facts observable/ ascertainable by them.

Question 35

What is the limitation period for a Judgment claim?

Answer 35

s24:
An action to enforce a judgment cannot be brought six years from when the judgment became enforceable, nor can interest be recovered after that period.

Question 36

What are the limitation periods on tort or contractual claims?

Answer 36

For an action in tort, the limitation period expires six years after the date on which the cause of action accrued (s2). - This will be from the date of actionable damage.

Same for contract (s5). - This will be from the date of breach.

Question 37

Can claimants receive an extension on the limitation period due to disability?

Answer 37

s28:
If the claimant is under a disability at the time that the cause of action accrued, the limitation period starts to run from when the disability ends, and is:

• 2 years in relation to contribution claims;
• 3 years in relation to personal injury or fatal accident claims; and
• 6 years in most other cases.

A person is under a disability whilst they are a minor (under the age of 18) or lacks mental capacity to conduct the proceedings (within the meaning of the Mental Capacity Act 2005) (s 38).

Question 38

What is the limitation period for claims based on fraud/concealment/mistake?

Answer 38

Where a claim is:

• Based on fraud, or;
• Any fact relevant to the cause of action has been deliberately concealed by the defendant; or
• The action is for relief from the consequences of a mistake; then

Limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).

Question 39

When and how are claims brought against partnerships?

Answer 39

Claims are brought against a partnership when two or more people were partners or claimed to be partners and carried on business when the cause of action arose.

CPR 7.2A and 7A PD 5A: Claims should generally be brought in the partnership’s business name at the time the cause of action accrued. If name changes or mergers make this inappropriate, partners may be named individually.

The firm name is used for convenience in proceedings; the partnership itself is not a separate legal entity.

Enforcement consideration: If likely to enforce judgment against personal assets, partners should be named personally to avoid disputes. A compromise involves using the partnership’s name while listing individual partners.

The partnership name used must reflect the name at the time the cause of action arose. If the partnership dissolved before proceedings, claims are made against the former partners in the name of the dissolved firm.

Claims can also be brought against an individual doing business under a different name, treated as if it were a partnership (CPR 7A PD 5C).

Question 40

Who is named when bringing claims against sole traders?

Answer 40

Commonly both the individual and the trading name will be used when describing a party to the claim.

Question 41

How are claims brought against LLP’s?

Answer 41

As Partners/Members in an LLP have limited liability (the LLP is liable for all of its debts and the full extent of its assets), and almost all LLP’s contract with their clients on the basis that the contract is with the LLP with clients agreeing not to sue members personally, a claim brought against the full registered name including the suffix would be required for an LLP registered in England and Wales

Question 42

How to bring a claim against a company?

Answer 42

As the claim form must include the full name of each party, for a company registered in England and Wales this is the full registered name, including the suffix (such as plc or limited), if any.

A company may be represented at trial by an employee if:

• The employee has been authorised to do so by the company and
• The court gives permission

Question 43

How to bring claims against trusts and deceased persons?

Answer 43

Trusts:
Claims can be brought by or against trustees, executors, or administrators.
Beneficiaries of the trust or estate do not need to be added as parties to the claim (CPR 19.12(3)).
Orders made are binding on beneficiaries unless the court orders otherwise.

Deceased Persons:

Under CPR 19.8(1), if no personal representative of the deceased exists, the court may:
- Allow the claim to proceed without a representative.
- Appoint a person to represent the estate.

Under CPR 19.8(2), if the defendant has died:
- If probate or administration has been granted, the claim must be brought against the personal representatives.
- If no grant of probate or administration, the claim is brought against “the estate of” the deceased, and the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

Question 44

How are claims brought for children and protected parties under CPR 21?

Answer 44

Children: Defined as those under 18 and legally incapable of pursuing claims on their own. They must have a litigation friend.

Protected Parties: Individuals who lack capacity under the Mental Capacity Act 2005 due to mental impairment. Legal capacity is presumed unless proven otherwise.

Capacity Determination: Legal advisors must ensure the party can understand key issues with proper explanations. Factors to consider (Masterman-Lister case):

Can they recognise the problem?
Can they explain it clearly?
Can they understand and evaluate advice?
Can they make decisions and give instructions?
Medical assessments or evidence from solicitors/family may be required.

Question 45

Who is a litigation friend and what are the requirements for appointment?

Answer 45

A litigation friend represents children or protected parties in civil proceedings (CPR 21.2). To act as a litigation friend (CPR 21.4(3)), the person must:

• Fairly and competently conduct proceedings.
• Have no adverse interest to the child or protected party.
• If the child/protected party is the claimant, undertake to pay any costs, subject to reimbursement from the assets.

A litigation friend is typically a relative or court-appointed, and the appointment can often be made without a court order by filing a certificate of suitability.

Question 46

How are documents served on children and protected parties in civil proceedings?

Answer 46

Under CPR 6.25, documents must be served on the litigation friend of a child or protected party. For appointing a litigation friend, different service rules apply (CPR 21.8).

In the claim form, children and protected parties are referred to as represented by their litigation friend (21 PD 1.1 and 1.2)

Question 47

What steps can be taken against a child or protected party in proceedings before the appointment of a litigation friend?

Answer 47

A person cannot make an application against a child or a protected party before proceedings have started or take any step in the proceedings unless the child or protected party has a litigation friend (CPR 21.3). The exceptions are to serve a claim form or to seek the appointment of a litigation friend by way of a court order. Any other step taken in the proceedings where there is no litigation friend has no effect (CPR 21.3(5)).