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FLK 1 - Dispute Resolution > 1. Key Pre-action Steps > Flashcards

1. Key Pre-action Steps Flashcards

1
Q

What is Alternative Dispute Resolution (ADR)?

A

A method of resolving disputes outside of court.

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2
Q

What are the key pre-action steps in ADR?

A

Engaging with ADR and considering alternatives.

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3
Q

What is mediation in ADR?

A

A voluntary and non-binding process where a neutral third party helps parties reach a settlement.

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4
Q

What are the characteristics of mediation?

A

Voluntary, non-binding, confidential, and preserves relationships.

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5
Q

What is arbitration in ADR?

A

A partially voluntary and binding process where a neutral third party makes a decision.

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6
Q

What are the characteristics of arbitration?

A

Partially voluntary, binding, confidential, and easier to enforce.

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7
Q

What is litigation in ADR?

A

A process where disputes are resolved in court.

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8
Q

What are the characteristics of litigation?

A

Not voluntary, cannot withdraw without paying costs, court can impose a solution if no settlement reached, and public.

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9
Q

When should ADR be used?

A

Unless it is inappropriate, the other party won’t cooperate, or the other party won’t comply with the award.

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10
Q

What happens if a party fails to engage in ADR?

A

They may be required to consider settling by ADR and must provide a witness statement giving reasons within 21 days of the ADR proposal.

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11
Q

What are the court sanctions for refusing to engage in ADR?

A

Sanctions may be imposed on the party, burden is on the other party to show refusal is unreasonable, and there is no presumption in favor of mediation.

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12
Q

What are the solicitor’s duties in relation to ADR?

A

To explain to the client the need to try to settle, the options available, and the possible cost sanction if they refuse to engage.

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13
Q

What is the purpose of an independent third party (ITP) in ADR?

A

To provide neutrality and expertise in understanding the dispute.

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14
Q

What is the effect of an independent third party (ITP) in ADR?

A

Parties are more open and less aggressive, and the prospects of reaching a settlement are higher.

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15
Q

What is the procedure in mediation?

A

The mediator is sent written statements from both parties and discusses the case with them on a ‘without prejudice’ basis.

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16
Q

What are the advantages of mediation?

A

Cost and speed, flexibility, privacy, and preserving relationships.

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17
Q

What is commercial reality?

A

Ability to reach arrangements that litigation and a court would not.

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18
Q

What is the ability to withdraw?

A

The ability to withdraw from a dispute resolution process at any time.

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19
Q

What is limited disclosure?

A

The lack of formal procedures or disclosure, which raises the risk that parties may not know all the facts.

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20
Q

What is the disadvantage of limited disclosure?

A

Parties may not have all the necessary information to make informed decisions.

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21
Q

What is the disadvantage of privacy in dispute resolution?

A

There is no opportunity for public vindication or reparation of reputation.

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22
Q

What is the disadvantage of easiness to withdraw?

A

The ease of withdrawal may eventually lead to litigation.

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23
Q

What is the disadvantage of enforcement in dispute resolution?

A

Enforcement is not automatically binding and non-compliance may amount to a breach of the agreement.

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24
Q

What is arbitration?

A

A dispute resolution process that can be partially voluntary and is governed by the Arbitration Act 1996.

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25
Q

When does arbitration arise?

A

Arbitration can arise if parties are contractually bound to use arbitration by a dispute clause or if parties agree to arbitration once a dispute has arisen.

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26
Q

What is the legal authority for arbitration?

A

Arbitration is governed by the Arbitration Act 1996, but only if the agreement to arbitrate is in writing.

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27
Q

What is the procedure in arbitration?

A

An independent arbitrator specified or chosen by the parties will adopt the arbitration process and reach a binding decision.

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28
Q

How is an arbitration award enforced?

A

The winning party can apply to the High Court under section 66 of the Arbitration Act 1996 for permission to enforce the arbitration award as if it were a court judgment.

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29
Q

What are the advantages of arbitration?

A

Quicker and cheaper than litigation, less formal, private and confidential, and can provide more practical solutions.

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30
Q

What are the disadvantages of arbitration?

A

Limited disclosure, limited options for remedies, not necessarily a cheap alternative, and very limited right of appeal.

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31
Q

What is litigation?

A

The process of resolving disputes through the court system.

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32
Q

What is the disadvantage of no withdrawal in litigation?

A

Parties cannot withdraw from litigation without paying the opponent’s costs.

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33
Q

What is the legal authority for civil litigation?

A

Civil litigation is governed by the Civil Procedure Rules 1998 (CPR).

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34
Q

Who are judges?

A

District judges who deal with work in the County Court and High Court.

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35
Q

What do judges deal with?

A

Majority of interim applications and trials where the amount involved does not exceed 25,000 pounds.

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36
Q

Who hears trials of excess amount?

A

Circuit judges in the County Court and High Court judges in the High Court.

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37
Q

Who is the court manager?

A

Senior civil servant in charge of the court office.

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38
Q

What documents are addressed to the court manager?

A

Formal documents such as claim forms and defences.

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39
Q

What is the role of ushers?

A

To assist in the smooth running of the courts.

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40
Q

What do enforcement officers do?

A

Serve court documents and enforce court orders and judgments.

41
Q

What happens if the claimant misses the time limits imposed by the Limitation Act 1980?

A

The claim will be ‘statute barred’ and the matter ends.

42
Q

What happens if the claim is statute barred?

A

The defendant has a complete technical defence and the claim will most likely fail.

43
Q

Will the court allow actions commenced outside the limitation period to proceed?

A

No, unless there are exceptional circumstances.

44
Q

Does the court have discretion to extend the limitation deadline?

A

Yes, but only in exceptional circumstances.

45
Q

What is the limitation period for personal injury claims?

A

3 years from the accident or knowledge of injury.

46
Q

When does the limitation period start for personal injury claims?

A

From the date of the cause of action or the date of knowledge of the person injured.

47
Q

What is the date of knowledge for personal injury claims?

A

When the person injured first had knowledge that the injury was significant and attributable to negligence.

48
Q

What is the limitation period for a tort claim?

A

6 years from the date damage is suffered.

49
Q

When does the limitation period for a tort claim start?

A

The day after the damage is suffered.

50
Q

What is the limitation period for a contract claim?

A

6 years from the date of breach of contract.

51
Q

When does the limitation period for a contract claim start?

A

The day after the breach of contract.

52
Q

When does the limitation period start for minors/children?

A

From their 18th birthday.

53
Q

What is latent damage?

A

Damage that is hidden at the time the cause of action accrued.

54
Q

What is the limitation period for latent damage claims?

A

6 years from the date of the cause of action or 3 years from the date of knowledge of the damage, whichever is later.

55
Q

What is the overriding time limit for latent damage claims?

A

No later than 15 years after the date of the negligent act or omission.

56
Q

Can a contractual time limit be shorter than the statutory limitation period?

A

Yes, it can be specified in the contract.

57
Q

Who should be sued in an employment tort claim?

A

Both the employee and the employer.

58
Q

Why should both the employee and the employer be sued in an employment tort claim?

A

The employer is vicariously liable for the actions of the employee.

59
Q

Who can a consumer have a cause of action against in a defective product claim?

A

Both the retailer and the manufacturer.

60
Q

Who must act on behalf of children and protected parties in a claim?

A

A litigation friend.

61
Q

How should an individual defendant be sued?

A

On their own behalf.

62
Q

How should a representative defendant be sued?

A

On behalf of a partnership or LLP.

63
Q

How should a director defendant be sued?

A

On behalf of a limited company.

64
Q

What should be checked before suing a defendant?

A

If they are on the verge of bankruptcy or liquidation.

65
Q

Where can you search for information about a defendant’s bankruptcy or liquidation?

A

Companies House (for companies) or bankruptcy search (for individuals).

66
Q

What are the two types of claims?

A

Specified and unspecified.

67
Q

What is a specified claim?

A

A claim with a fixed amount of money owed.

68
Q

What is an unspecified claim?

A

A claim where the amount of money payable is determined by the court.

69
Q

What is the purpose of the Practice Direction on Pre-Action Conduct?

A

To encourage parties to act reasonably and attempt to resolve matters before court action.

70
Q

What may be deemed unreasonable conduct in ADR invitations?

A

Silence + refusal to participate.

71
Q

What are the consequences of non-compliance?

A

Increased costs, reduced damages, paused proceedings, or explanation.

72
Q

What is the purpose of a Letter Before Claim?

A

Exchange information under PDPAC.

73
Q

What should be included in a Letter Before Claim?

A

Nature of claim, remedy sought, ADR proposals, key documents.

74
Q

How long does the defendant have to respond to a Letter of Response in a straightforward claim?

A

14 days.

75
Q

How long does the defendant have to respond to a Letter of Response in a complex case of professional negligence?

A

21 days to acknowledge + 3 months to respond.

76
Q

How long does the defendant have to respond to a Letter of Response in a non-B2B debt claim?

A

30 days.

77
Q

Where should money claims be started?

A

County Court Money Claims Centre.

78
Q

Where should personal injury claims over £50k be started?

A

County or High Court.

79
Q

Where should non-personal injury claims over £100k be started?

A

County or High Court.

80
Q

What is the test for starting proceedings in the High Court?

A

Complex + high value and/or of public importance.

81
Q

What must solicitors do to carry out advocacy in the High Court, Court of Appeal, or Supreme Court?

A

Take assessments to gain Higher Rights of Audience.

82
Q

What are the general rules for determining which country’s laws apply in proceedings issued in an English court after 1 January 2021?

A

Old jurisdictional rules of the EU are no longer valid.

83
Q

What happens when the UK is involved in cases where each country applies its own domestic rules?

A

Each country applies its own domestic rules.

84
Q

Can parties nominate the governing law of their choice?

A

Yes, with some exceptions.

85
Q

What is an exception to the choice of law in contracts?

A

Unfair Contract Terms Act 1977.

86
Q

What happens if an agreement has been reached in advance regarding the governing law of a claim?

A

The case will proceed on that basis.

87
Q

No law chosen

A

Default provisions apply when no governing law is chosen.

88
Q

Jurisdiction

A

The authority of a court to hear and decide a case.

89
Q

2005 Hague Convention

A

UK is subject to the 2005 Hague Convention.

90
Q

Effect of 2005 Hague Convention

A

Requires designated court to hear the case and dismiss proceedings in another contracting State.

91
Q

Common Law

A

Rules that apply when the Hague Convention does not.

92
Q

Service within England and Wales

A

Jurisdiction established if claim form served on defendant while present.

93
Q

Rationale for service within England and Wales

A

Defendant’s presence indicates acceptance of jurisdiction.

94
Q

Objection to service within England and Wales

A

Defendant can object if English courts are not most appropriate.

95
Q

Service outside England and Wales

A

Permission needed to serve documents outside jurisdiction.

96
Q

Effect of service outside England and Wales

A

Courts can provide remedy for wrongs committed anywhere.

97
Q

Granting service outside England and Wales

A

Contract made or breached in England or Wales, governed by English law, or has agreement conferring jurisdiction on English courts.

98
Q

What is the meaning of oTort?

A

The act causing the damage was committed in England and Wales, or the loss was sustained here.

FLK 1 - Dispute Resolution (7 decks)

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