1.2 Civil Disputes Flashcards
Which parties can sue/be sued?
People with capacity
- Over 18
- Under 18 + represented by litigation friends (protected parties)
Company
- Separate legal personality
- Holding Co/Subsidiary (check correct Co being sued)
- Liquidated > Company ‘in liquidation’
LLP
- Separate legal personality
Partnership
- NO legal personality
- Sue/Be sued individually/in firm’s name
Sole trader
- NO legal personality
- Named (‘trading as’/trading name)
Associations
- Incorporated > Sue in own name
- Unincorporated > Sue representative proceedings/member names
Trustee
- Sue/Be sued collectively (Beneficiaries no need to be named)
Deceased’s personal reps
- Continue claims from those vs deceased
- Court can substitute to whom interest/liability passed
What should be considered towards a cause of action?
Merits
Supporting evidence
Further required evidence
Steps > Obtain/Preserve evidence
Appropriate DR form
What are the limitation periods? What factors should be considered?
Contract (6 years)
Deed (12 years)
Tort (6 years)
Factors
- Contract provisions affecting limitation period
- Extend/Disapply period
- Claim received by court for issue > Brought/Commenced
When must Claimant and Respond serve claim/response?
1) C > R
- Letter of claim
- Include basis of claim, summary of facts, damages sought, method of calculation
2) R > C
- Response
- Within reasonable time (14 days to 3 months) (depends on complexity of case)
Otherwise > Court sanctions
What is required in pre-action advice?
Merits
Jurisdiction
Steps before commencement
- Pre-action protocols
- ADR
Procedural steps
Costs
Recovery of court ordered sums
Injunctive relief
W + Expert evidence
Likely steps
Info
- Funding
- Adverse costs liability
- Enforcement
What pre-action considerations are made towards enforcement?
Client’s likely prospects to enforce Opponent’s performance in Client’s favour
Cost + Risk of enforcement (NOT successful claim)
Issues potentially preventing Client’s ability to enforce supporting judgment
What is the purpose of practice directions?
Before commencing proceedings > Court expects parties to exchange sufficient info;
- Undersatnd their positions
- Make decisions how to proceed
- Settle w/o proceedings
- Consider ADR
- Support efficient management
- Reduce resolving costs
How may practice directions be applied?
Pre-action protocol exists
- Personal injury/Construction and engineering/Professional negligence/Debt
- Parties to comply
NO pre-action protocol exists
- Master of Rolls applies
What happens if a party (defaulting party) fails to comply with pre-action protocol?
Sanctions
- Winner (lower interest rate)
- Loser (higher interest rate)
Consider default party’s conduct
- Case mgmt decisions
Penalise default party re costs award
What are the exceptions to the pre-action protocol?
Other statutory/formal pre-action procedure
NO other parties to engage with
Negotiation > Application
Urgency of application > NOT practical to comply with
Freezing order app
- Telling other potential party in advance > Defeats purpose
What factors can determine the governing law?
CoL/Jurisdictional clause
UK Court’s jurisdiction
Competing jurisdictions
Foreign law
Opponent domiciled abroad
What factors can determine the court’s jurisdiction?
E&W courts > Jurisdiction?
Statutory framework
- Civil Jurisdiction and Judgments Act 1982, 1991
- Civil Jurisdiction and Judgment Regulations 2009
- 2001 Brussels Regulation
Contracts clauses
- Arb clause > Seat of arb, governing law
- DR clause
Party resides/has business outside jx
Agreement concluded outside jx
Limited Co registered abroad > UK presence
TP jx > Better outcome?
Enforcing judgments outside jx > Provisions?
