Chapter 1: Introduction to Dispute Resolution

Question 1

1. Overview of a civil claim
   1.1 What is civil dispute resolution?

Answer 1

Dispute resolution is most easily thought of as any kind of litigation which is not criminal litigation.
Criminal litigation is concerned with a dispute between the state (the crown) and a defendant, with the defendant being prosecuted in the public interest and to punish the defendant.

Civil proceedings are quite different. The two parties are the claimant and the defendant, and in the vast majority of cases these are private parties, not the state. In simple terms, the claimant is going to court to seek a remedy, most often a sum of money to be paid by the defendant.

Question 2

Civil dispute resolution is very broad and varied. Examples include:

Answer 2

(a) Breach of contract claims
(b) Personal injury claims
(c) Claims in relation to the negligence of professionals
(d) Disputes about the ownership of property or rights in relation to property
(e) Disputes about the living arrangements of a child when parents separate
(f) Financial relief in divorce proceedings
(g) Whether a government organisation such as a local authority has acted in accordance with
the law
(h) Whether intellectual property (for example, a patent) has been infringed

Question 3

Civil Dispute Resolution is also known as

Answer 3

Civil dispute resolution is often referred to simply as dispute resolution or litigation or civi litigation. Litigation suggests court proceedings, but parties may seek to resolve a civil dispute by methods other than court proceedings, such as by negotiation, and so the expression ‘dispute
resolution’ is sometimes used to convey the forms of alternative dispute resolution for civil claims

Question 4

Without the need for court proceedings

Answer 4

As well as trying to resolve the matter without the need for issuing court proceedings in the first place, the parties may well explore alternative ways of resolving the dispute whilst the proceedings are underway, such as by negotiation or mediation. If the parties can resolve it in this alternative way, there are ways of bringing the proceedings to an end early as they are no longer necessary.

Question 5

1.2.1 Statements of case

Answer 5

At the beginning of the proceedings, the claimant needs to state what remedy or relief they want -
what order or judgment they want the court to make at trial. Generally, this will be an order for the defendant to pay a sum of money to the claimant

Question 6

Claim form or particulars of a claim

Answer 6

Having established that there is a legal basis for the claim, the claimant needs to set out the facts underpinning the claim - the facts entitling the claimant to that remedy. The claimant does this in documents called the claim form and particulars of claim.

Question 7

The defence

Answer 7

And then the defendant must respond. If the defendant does not respond or the defendant admits the claim then the claim is likely to proceed quickly to a judgment in the claimant’s favour. If the defendant wants to avoid that, the defendant needs to set out which of the facts it agrees with and which it does not, and why. The defendant does this in its own document, the defence

Question 8

Defining the scope of the dispute

Answer 8

The claim form, particulars of claim and defence are statements of case – crucial documents because they define the scope of the dispute.

Question 9

Example of facts for a personal injury claim

Particulars of a claim

Answer 9

The claimant alleges in their claim form and particulars of claim that they were driving down the road when the defendant negligently pulled out of a side street colliding with the claimant’s
vehicle, causing the claimant to suffer a neck injury. The claimant suffered pain and required medical treatment. They had a prognosis of long term neck problems and also lost £5,000 of
income due to time off work as a result. The claimant therefore seeks £25,000 from the defendant

Question 10

The defense

Answer 10

The defendant, in their defence, admits that they pulled out of a side street and collided with the
claimant’s vehicle, but deny being negligent, rather the claimant was speeding. The defendant does not admit that the claimant has suffered an injury or lost money due to the accident because the defendant has no way of knowing if that is true.

Question 11

1.2.2 Trial

Once the claim is underway

Answer 11

Once the claim is underway and the statements of case have been exchanged, ultimately the
issues to be decided by the court will be decided at the trial of the case so the whole process of dispute resolution from this stage is geared towards that hearing.

Question 12

Two main roles of the judges

Answer 12

Jumping forward to trial then, the judge has two main roles. Firstly, the judge has to decide any issues of fact that the claimant and defendant did not agree on. So, where the claimant and defendant have not agreed upon something in their statements of case, the judge needs to decide what the correct version of those facts is

Question 13

The role of the judges

Answer 13

The judge will then take those facts as they have found them, together with the facts that were admitted by the defendant (so those that the claimant and defendant agree on) and decide
whether that collection of facts and findings entitles the claimant to the relief claimed.

Question 14

Example: Civil claim (trial)

Answer 14

Taking the earlier example of facts for a personal injury claim, the judge will need to decide whether the defendant driver acted negligently, whether the claimant suffered a neck injury, and
whether the claimant lost £5,000 of income. Once the judge has determined the facts, they will
determine whether those facts entitle the claimant to an order that the defendant should pay the claimant £25,000.

Question 15

Example: Civil claim (trial)

Answer 15

If the claimant and the defendant do not agree on certain facts, how is the judge going to decide what the facts truly are? The main ways are to look at documents - documentary evidence - and to hear what witnesses say. It does not make sense for each party to turn up at trial with documents that the other side has never seen before and witnesses that the other side has never heard from before; trial would be hectic and deprive the parties of the opportunity of resolving matters themselves without trial had they shared information earlier.

Question 16

1.2.3 Evidence

Answer 16

Before trial, evidence is exchanged by the parties. In the majority of cases, the parties will exchange documents, and will also exchange statements of what their witnesses wish to put forward as evidence. In some cases, there will be expert witnesses too, who are there to give evidence on matters within their expertise, and their reports will also be served or exchanged at a
given point. Each of stage of evidence can involve significant time and expense in preparing the evidence for exchange and in reviewing the evidence received from the other party.

Question 17

Example: civil action (evidence)

Answer 17

Taking the earlier example of facts for a personal injury claim, the claimant may share with the defendant medical records or photos of the damaged car. Each party will want to rely on their
own witness evidence, explaining what they recall about the accident. Each party may want a medical expert, an expert witness, to explain the cause of the claimant’s injuries and the prognosis for the claimant’s recovery.

Question 18

1.2.4 Case management

Answer 18

The court does not leave the process of exchanging evidence entirely to the parties, if and when they choose. The court rules aim to deal with claims justly and at proportionate cost, and the court will actively manage a case to promote this objective.

Question 19

1.2.4 Case management

Answer 19

The court does not leave the process of exchanging evidence entirely to the parties, if and when they choose. The court rules aim to deal with claims justly and at proportionate cost, and the court will actively manage a case to promote this objective

Question 20

1.2.4 Case management: Timetable for Preparation

Answer 20

In particular, the court will set out a timetable for the preparation and exchange of evidence before trial by making an order which is called a directions order. The timetable will be tailored to the particular case, in particular depending on the complexity of the issues, the amount of money
at stake, and the needs of justice more generally.

Question 21

Allocation of case to one of the three tracks

Answer 21

So, after the parties have served their
statements of case, the court will allocate the claim to one of three case management tracks, the small claims track, fast track, or multitrack, and will set out directions which are appropriate to these three broad categories of claim to guide the claim through the evidence stages on the way to trial.

Question 22

1.2.5 Post trial: Discretionary grant of remedy

Answer 22

Once the court reaches its decision at trial, it may grant the claimant the remedy which the claimant seeks, and may also order one party to pay costs to the other party. If a party does not
comply with an order of the court, the other party may wish to try to enforce the order. In addition, either party may wish to appeal a judge’s decision - to have it reconsidered by a more
senior judge - although the grounds of appeal are limited

Question 23

Example: Civil claim (post trial)

Answer 23

Taking the earlier example of facts for a personal injury claim, if the defendant is ordered to pay a
sum of money to the claimant but the defendant does not do so, the claimant may wish to enforce that order by having the defendant’s goods seized and sold and the money sent to the claimant, or by a variety of other enforcement mechanisms

Question 24

1.2.6 Pre-action

Answer 24

The above covers the whole process from the start of proceedings to the end which generally takes a lot of time, causes the parties great inconvenience and costs a lot of money. So, before the claimant issues and serves the claim form, the parties are expected to try and resolve the
dispute without proceedings

Question 25

1.2.6 Pre-Action

Answer 25

There are rules and protocols that set out what is expected of the parties, but, broadly, each party sets out its position in a less formal way than via the statements of case, exchanging certain evidence and trying to resolve the matter by negotiation. If the dispute can be resolved in this
way, then that is likely to be better for the parties.

Question 26

1.2.7 Interim applications

Answer 26

A party might need something from the court before trial, such as an extension of time to comply with the directions, an order that the other party provides some form of evidence, or some other
urgent help from the court. A party can make an interim application to the court for such relief, and the court will provide a decision in relation to that application in a matter of days, weeks or months depending on the urgency of the application, but in any event before trial

Question 27

1.3 Summary

Answer 27

• The parties are expected to try to resolve matters without the need for court proceedings.
• If court proceedings are required, the parties will prepare and send to each other statements of case; the claimant sets out the facts underpinning the claim and the relief it seeks, and the
  defendant indicates which parts of the facts it agrees with and which it does not.
• The court will then allocate the claim to a track and set out directions explaining what is required of the parties on the journey towards trial.

Question 28

Summary

Answer 28

*The parties will exchange documentary and witness evidence, and then there will be a trial to
determine the issues and decide whether the claimant is entitled to any relief.
* If a party does not comply with an order of the court, the other party may seek to enforce the
order. A party may appeal a decision of the court for it to be reconsidered by a more senior
judge.
* At any stage, a party make an interim application to the court and may consider alternative
dispute resolution.

Question 29

2 The civil court system

Answer 29

2.1 Introduction
The court system in England and Wales is a complex one. The numerous courts are supplemented
by many tribunals. It makes sense to consider civil courts and criminal courts separately, although some courts have jurisdiction in relation to both criminal and civil matters.
This section introduces you to the civil courts.

Question 30

2.2 The civil courts of England and Wales

Answer 30

The main civil courts are the County Court, the High Court, the Court of Appeal and the Supreme
Court. The tribunals and appeal tribunals are very important in certain areas, generally concerned with
the interaction between the state and individuals (for example, in relation to immigration or benefits). The Magistrate’s Court has a very limited civil jurisdiction. These are outside the scope of this element.

Question 31

2.2 The civil courts of England and Wales

Answer 31

The County Court and the High Court are courts of first instance – claims can be started in these
courts. Appeals also take place in these courts. The Supreme Court and the Court of Appeal only
hear appeals. Claims are not started here. If claims can be started in either the County Court or High Court, how do you decide which?

Question 32

2.3 The County Court

Answer 32

There is one national County Court with 173 County Court ‘hearing centres’ spread across
England and Wales. Some of the administration, including issuing money claims, is handled
centrally and/or online. A hearing centre local to the parties can be selected for any hearings that
take place. The County Court does not have separate divisions and is generally used for less complex, lower
value claims where a specialist judge is not required

Question 33

2.4 The High Court

Answer 33

The High Court of Justice sits in the Royal Courts of Justice (‘RCJ’) in the Strand, London, and in various regional centres (‘District Registries’). There are over 130 District Registries serving various parts of the country. Claims involving disputes in London must be commenced in the RCJ. Other claims may be commenced in either the RCJ or the appropriate District Registry. The High Court is divided into 3 divisions, and within those divisions, many specialist ‘courts’ (courts within a court, you might say) and lists

Question 34

2.4 The High Court

Answer 34

• Chancery Division;
• King’s Bench Division; and
• Family Division.
  The allocation of business between divisions is for convenience and reasons of expertise only. The
  Family Division deals with matrimonial and related matters and is not considered in this workbook.

Question 35

2.4.1 The High Court: King’s Bench Division

Answer 35

• ‘General’ KBD list: Covers broad areas, mainly claims for damages in respect of personal
  injury, professional negligence, breach of contract, non-payment of debt, and other matters not falling within specialist courts / lists.
• Administrative Court:Administrative law- lawfulness of acts and omissions of the state –mainly judicial review.
• Planning Court:Appeals / applications relating to planning permission, highways, rights of
  way, compulsory purchase orders.
• Commercial Court: Complex cases arising out of business disputes, in particular arbitration, aviation, banking and financial markets, fraud, insurance, shipping. Often international disputes
• Circuit Commercial Courts: Commercial work - commercial contracts, sale of goods,
  insurance, banking, professional negligence.
• Technology & Construction Court: Construction, engineering, computers, software, environmental, public procurement.
• Admiralty Court: Shipping and maritime.

Question 36

2.4.2 The High Court: Chancery

Answer 36

• Insolvency and Companies List: ‘Insolvency’ includes personal and corporate insolvency.
• ‘Companies’ includes unfair prejudice petitions, shareholders disputes, directors’
  disqualification, applications under the Companies Act 2006.
• Revenue List: Claims involving major points of principle relating to taxation where HMRC is party
• Competition List: Competition law

Question 37

2.4.2 The High Court: Chancery

Answer 37

• Business List: A broad range of disputes, often concerning a business structure, directors’ breach of duty, tort, breach of contract, pensions, financial services.
• Property, Trusts and Probate List: Land including landlord and tenant, administration of estates, execution of trusts, charities, probate.
• Intellectual Property List: Intellectual property, such as patents and registered designs

Question 38

2.4.3 The High Court (KBD and Chancery)

Answer 38

The courts shown in a black box in the diagram (specialist courts within the KBD, and all of the Chancery Division) are collectively known as the Business and Property Courts. They sit in
London, and some of these courts / lists also sit in Birmingham, Bristol, Leeds, Liverpool, Manchester, Newcastle and Cardiff.

The Financial List is part of both the KBD and Chancery Division, and hears financial disputes of £50million or more in value, and which require particular judicial knowledge of financial markets.

Question 39

2.5 The Court of Appeal and Supreme Court

Answer 39

The Court of Appeal is based at the Royal Courts of Justice in London but has occasional sittings elsewhere in England and Wales. It consists of a Civil Division and a Criminal Division, which between them hear appeals in a wide range of cases covering civil, family and criminal justice. In some cases, a further appeal lies, with permission, to the Supreme Court, but in practice the Court of Appeal is the final court of appeal for the great majority of cases

Question 40

2.5 The Court of Appeal and Supreme Court

Answer 40

The Supreme Court is at the apex of the legal system of the United Kingdom. It hears appeals
from courts in England and Wales, Scotland and Northern Ireland on the most significant cases.
Permission to appeal to the Supreme Court is required and will only be granted if the issue raised
is of ‘general public importance

Question 41

2.6 Judges - hierarchy

Judicial Leaders

Answer 41

As well as the judges, you should be aware of some particular leadership roles in the judiciary.
Lord Chief Justice: the most senior member of the judiciary, the Lord Chief Justice represents the
views of the judiciary of England and Wales to Parliament and Government and leads in relation
to the welfare, training and guidance of the judiciary and the deployment of judges across
England and Wales.
Master of the Rolls: President of the Civil Division of the Court of Appeal, a judge of the Court of
Appeal, and second in judicial importance to the Lord Chief Justice.
President of the Family Division: Head of Family Justice, member of the Court of Appeal.
President of the King’s Bench Division: Head of the King’s Bench Division, member of the Court of
Appeal.
Chancellor of the High Court: Head of the Chancery Division, member of the Court of Appea

Question 42

2.7 Rights of audience

Answer 42

Solicitors can carry out advocacy in the Magistrate’s Court, County Court, Tribunals and Appeal Tribunals.
Solicitors are not generally authorised to carry out advocacy in the ‘Higher Courts’, which for the purposes of civil disputes means the High Court, Court of Appeal and Supreme Court. This work would ordinarily be carried out by barristers. If solicitors wish to carry out advocacy in the High Courts, they need to undertake training and pass assessments to obtain Higher Rights of Audience.

Question 43

2.8 Summary

Answer 43

• The main civil courts are the County Court and High Court, which are courts of first instance.
• The Court of Appeal and Supreme Court are courts that only hear appeals.
• Claims cannot be commenced in the High Court unless their value is more than £100,000
  (£50,000 or more in the case of PI claims)

Question 44

2.8 Summary

Answer 44

• The High Court has three divisions – King’s Bench, Chancery and Family – and specialist
  courts / lists within these divisions.
• Judges in the County Court are Deputy District Judges, District Judges, Recorders or Circuit
  Judges. In the High Court, they are High Court Masters or High Court Judges.
• Solicitors cannot carry out advocacy in the High Court, Court of Appeal or Supreme Court without taking assessments to gain Higher Rights of Audience.

Question 45

3 The CPR and the overriding objective

Answer 45

There are certain concerns which run throughout civil litigation. Four examples are set out below. This section will focus on the Civil Procedure Rules 1998 and the overriding objective.

Question 46

Overview of the CPR

Answer 46

• The Civil Procedure Rules govern the procedure of litigation.
• The Civil Procedure Rules are divided into parts.
• Each part contains a number of rules.
• Most parts are supplemented by ‘Practice Directions’.
• Both rules and practice directions are binding, and you must read them together.

Question 47

3.1.1 Practice Direction (PD) relating to the use of the Welsh language

Answer 47

This PD applies to cases in the civil courts in Wales or having a connection to Wales. Its purpose is for the English and Welsh languages to be treated on the basis of equality in the administration of justice in Wales. The PD does not alter exiting practice so that a hearing in Wales can be entirely in the Welsh language on an ad hoc basis and without notice when all parties and witnesses consent at the
time. In addition, where it is possible that Welsh may be used by any party or witness, the court must be informed so that arrangements can be made for the management and listing stages of
the case (which you will be introduced to later) in:

Question 48

3.1.1 Practice Direction (PD) relating to the use of the Welsh language

Answer 48

The directions questionnaire;
* The pre-trial checklist (listing questionnaire); and
* An interim hearing when the court is considering whether to give case management directions.

Question 49

3.1.1 Practice Direction (PD) relating to the use of the Welsh language

Answer 49

Where the Welsh language is to be used, the court will ensure the case is before a Welsh speaking judge whenever practicable and in a court with translation facilities. Witnesses may be sworn in Welsh or English. Any document placed before the court may be in English or Welsh. If costs are incurred because a party has failed to comply with the PD, a costs order may be made against them

Question 50

3.2 Overriding objective

Answer 50

One of the most important and pervasive rules in the CPR is the ‘overriding objective‘.
The overriding objective of the CPR is ‘to enable the court to deal with cases justly and at proportionate cost’ and the rule explains that this involves:
(a) Ensuring that the parties are on an equal footing.
(b) Saving expense.
(c) 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.
(d) Ensuring the case is dealt with expeditiously and fairly.
(e) Allotting to each case an appropriate share of the court’s resources, taking into account the
need to allot resources to other cases.
(f) Enforcing compliance with rules, practice directions and orders.

Question 51

3.2.1 Who must give effect to the overriding objective?

Answer 51

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)

Question 52

3.2.2 Participation of vulnerable parties or witnesses

Answer 52

The overriding objective requires that parties and witnesses can participate fully in proceedings, and there are specific provisions addressing vulnerable parties and witnesses (1A PD). The CPR defines a person as vulnerable when a factor may adversely affect their participation in
proceedings or giving evidence.
Participation can be affected by inability to understand proceedings, to express oneself, to respond to the court, to attend a hearing and/or to instruct a representative

Question 53

3.2.2 Participation of vulnerable parties or witnesses

Answer 53

This sort of vulnerability could be caused by a broad range of factors, including a witness/party being young, having language or communication difficulties, suffering from mental or physical disability or impairment, cultural circumstances or a range of other factors.
The court should take all proportionate measures to:
(a) Identify vulnerability of parties / witnesses;
(b) Give directions or make appropriate provisions to facilitate participation – for example, giving
a vulnerable party / witness extra time to comply, putting in place support at a hearing, or giving appropriate directions as to how advocates should conduct themselves.

Question 54

3.3 Summary

Answer 54

• The CPR consist of a number of rules covering all aspects of court procedure.
• The first rule is that the overriding objective of the CPR is to enable courts to deal with cases
  justly and at proportionate cost – the court is obliged to try and give effect to this objective, and the parties are obliged to assist the court to do so.

Question 55

3.3 Summary

Answer 55

• The court actively manages cases, to further the overriding objective (CPR 1.4). This means the court will not simply allow the parties to decide how to run the litigation. The court has broad powers to manage the case by setting deadlines, directing certain conduct and imposing sanctions.
• There are additional provisions guiding how the court should facilitate the participation of vulnerable witnesses and parties.

Question 56

4 Case analysis and the burden and standard of proof
4.1 Case analysis

Answer 56

A case analysis is an investigation of the legal issues to determine what must be proved or disproved. It should be completed for your client whether the client is the claimant or the
defendant. A case analysis at the outset will help to:
* Inform the client’s decision to bring a claim (if the client is the claimant) or how to respond to a claim (if the client is the defendant) on the merits of its case.
* Inform the strategy for pursuing the client’s case.
* Assist to estimate and budget costs.
A case analysis should also be reviewed throughout the case to take into account any changes in case law, the emerging facts and evidence in the case and any potential for settlement.

Question 57

4.1.1 Case analysis: duty, breach, causation & loss

Answer 57

A case analysis is best conducted by considering the elements of a cause of action. In the vast majority of cases, the cause of action is the four legal elements: duty, breach, causation and loss.

Question 58

Example: Case analysis

Answer 58

The claimant alleges that he was driving down the road when the defendant, a delivery driver, negligently pulled out of a side street colliding with the claimant’s vehicle, causing the claimant to suffer a neck injury. The claimant suffered pain and required medical treatment. He has a
prognosis of long term neck problems and also lost £5,000 of income due to time off work as a result. The claimant therefore seeks £25,000 from the defendant. The defendant has already indicated in pre-action correspondence that whilst she pulled out of a side street and collided with the claimant’s vehicle, the claimant was speeding

Question 59

4.2 Burden and standard of proof

Answer 59

There are certain concerns which run throughout civil litigation. Four examples are set out below.
You have already considered the overriding objective and the CPR in this chapter and costs is considered in a later chapter. The remainder of this section will focus on the burden and standard of proof.

Question 60

4.2.1 Burden of proof

Answer 60

Every fact in dispute must be proved.
The burden of proving any issue of fact or law generally falls on the party who asserts it.

Question 61

Example: Burden of proof

Answer 61

The claimant must prove:
* Duty, breach, causation, and loss for negligence
* Duty (existence and terms of contract), breach, causation and loss for contract The defendant must prove:
* Contributory negligence (if any)
* Why the defendant’s version of the facts is correct (and that, therefore, the claimant’s version must be wrong)

Question 62

4.2.2 Standard of proof

Answer 62

The standard of proof is proof on a balance of probabilities. In other words, a fact will be established if it is more likely than not to have happened. What facts need to be proved? The answer to this question is the facts in issue. These are shown
by the two parties’ conflicting versions of events (as set out in the statements of case). It is important to define them early and clearly and to narrow them down if possible.

Question 63

In certain situations the court may treat matters as established without evidence being brought
into court, as follows:

Answer 63

Formal admissions: In the statements of case; or in response to a notice to admit facts.
* Presumptions: For example: res ipsa loquitur (‘the facts speak for themselves’). This means that where the thing is shown to be under the management of the defendant and
the accident is such that in the ordinary course of things does not happen if those who have the management have proper care, it affords reasonable evidence that the accident arose from want of care. In other words, it signifies that further details are unnecessary; the facts of
the case are self-evident.
* Inferences of fact: Common sense conclusions drawn from primary facts

Question 64

4.3 Summary

Answer 64

• A case analysis for the client is necessary to establish the merits of the case on the basis of
  duty, breach, causation and loss at the outset of the client’s instructions and regularly throughout the case.
• Every fact in dispute must be proved by the party who asserts it.
• The civil standard of proof is on the balance of probabilities.