Dispute Res Flashcards
Limitation period for most tort claims (not involving personal injury)
Within 6 years from the time action accrued/tortious act occurred
If the tort was not readily apparent, 6 years from when claimant gained knowledge of the tort
Limitation period for personal injury
3 years from accrual or knowledge
If victim died from the tort within 3 years of accrual date, limitation period is 3 years from date of death or 3 years from when PR’s gained knowledge of the tort
Negligence claim for latent defects in property caused by a fault in design, materials or workmanship that existed at time of construction completion but not apparent at the time can be brought up to the later of:
6 years from accrual
3 years from earliest date on which claimant knew or reasonably ought to have known the material facts necessary to bring the action
But also long stop so that no action may be brought more than 15 years after the act or omission alleged to have caused the damage
Limitation period for contract actions
6 years
Period begins to run when breach occurs (accrual date)
A “make good” clause in contract does not supersede limitation period: applies only to duty to make good
When does time stop running for limitation period purposes?
When claimant delivers properly completed claim for to the court with request to issue proceedings and correct fee
When does the limitation period begin to run when claimant is a minor?
On the claimant’s 18th birthday
When does limitation period begin to run for fraud or concealment cases?
When claimant discovers the fraud or concealment or could have with reasonable diligence
How long does a defendant have to respond to claimant’s letter of claim under the Practice Direction?
14 days if straightforward, up to 3 months if complex claim
Under Personal Injury Protocol, what should be in letter of claim?
Clear summary of facts
Details on impact of claimant’s injuries on daily life
Hospital attended with relevant reference number
Indication of financial losses as far as they are known
Should indicate the docs that will be disclosed -there are standard disclosure lists for each type of injury
How long does a defendant have to respond to Personal Injury letter of claim?
21 days
Response can indicate that the defendant wants to investigate, in which case they have 3 months to admit or deny the claim
In PI protocol, how long does defendant have to disagree with list of suggested experts?
14 days
If they disagree, each party can instruct their own
What are likely consequences of failing to follow relevant protocol or the Practice Direction?
Stay of proceedings to allow PD or step in protocol to be complied with
Ordering the non-compliant party to pay the costs (or part of) of the other party
Restricting interest on the claim (if non-compliant party is the claimant)
When is it justifiable to issue proceedings without following relevant protocols?
Limitation period is almost over
Court order is required to preserve evidence or assets
Concern the defendant may seek to issue proceedings in another country to avoid UK courts
When can a party make pre-action application for disclosure?
Docs requested would be disclosure under standard disclosure and disclosure now would assist in disposing of the claim without needing to issue proceedings
Can seek from a non-party if it will support claim/adversely affect opponent and necessary to dispose of matter fairly or save costs
When is it possible to make a pre-application to inspect property if
The property is or may become the subject matter of proceedings
Or
It is relevant to the issues that will arise in relation to the proceedings
How are proceedings started?
Issuing a claim form setting out brief details of the claim
What is the financial limit for starting claims in County court?
50,000 for PI
100,000 for other
How are debt claims (where sum sought is certain, also known as specified claims) commenced
Money claim form issued by Civil National Business Centre in Northampton
where do most unspecified claims for damages start?
CNBC
filing in High Court may be appropriate if:
financial value of claim is high
issues, remedies or procedures will be complex and/or
outcome of the claim would be important to the public in general
Following receipt of defence or omission, CNBC will transfer the claim to hearing centre local to:
Defendant’s home address - if they are an individual
Claimant’s preferred centre - if defendant is a company
What are the 3 benches of the high court?
Chancery, Family and King’s Bench
Cases heard in King’s Bench:
Defamation
Breach of contract
Negligence and personal injury
Land possession
Nonpayment of debt
Specialist courts:
Technology and Construction Court: claims against architects, engineers, surveyors
Commercial Court: complex business disputes especially international trade
Cases heard in the Chancery Division
Equity and trusts
Commercial fraud
Taxes
Intellectual property
Contentious probate matters/wills
Business disputes
Professional negligence other than those heard by TCC
Specialist courts:
Bankruptcy
Companies court
What is on the claim form?
Claimant and defendant’s full names and addresses
Brief details of the claim
State value of claim (specified if a debt or amount expect to recover in damages as “not more than…”
Specify the court preferred
Signed statement of truth
Accompanied by:
Court fee (5% if £10,000-£200,000 or £10,000 if more than £200,000)
Particulars of claim on the back of the claim form — or can serve PoC within 14 days of service of the claim on defendant
What is a Part 8 claim?
Claim that does not involve a substantial dispute of fact
If claimant doesn’t respond to Part 8 claim form, they cannot take part in the hearing unless court gives permission
What’s on Part 8 claim form?
Questions the claimant wants court to decide
Details of the claim
And
The capacity of the representative if claim being made in representative capacity
Must serve witness evidence and particulars of claim with claim form
Any evidence must contain statement of truth
Time frame for a claim form to be served on defendant
4 months after its date of issue
If service is outside the jurisdiction, 6 months
What is included when serving claim form?
Claim form
Notice of funding
Defendant’s response pack
Who is served notice when def is indiv/company/partnership?
indiv: should be nominated sols or the indiv if they dont have them
company: doesn’t have to be to sols, can be with someone in senior position in the company
partnership: partner or person who has control or management at principal place of business
When can service be faxed?
Party or legal rep has indicated in writing that they will accept service by fax
They have given the fax number (including a number on the firm’s writing paper)
And
Fax number is within the jurisdiction
When can claim forms be served by Document Exchange (DX)?
Party’s address for service includes DX
The DX number is on their writing paper
And
No indication that service will not be accepted by DX
When can a claim be served by email?
Only if there is express consent
And email address for the documents has been provided
When is claim form deemed to be served?
Second business day after it has been mailed/personally delivered/faxed/emailed or sent by DX
If a defendant’s whereabouts are unknown, where should claim form be sent?
Last known address if made reasonable enquiries to find them
How and when can’t he defendant argue service of proceedings was not valid?
Indicate it on the acknowledgment of service and make application to set service aside within 14 days
If the claimant’s solicitor serves the claim form, how long do they have to file a certificate of service?
21 days
How many days does a defendant have to respond to the claim?
14 clear days from the date the Particulars of Claim have been served
If a defendant files acknowledgement of service, how much longer do they have to admit or file defence?
14 additional days
(28 days from Particulars of Claim)
What is the max time frame for filing a defence?
56 days from deemed date of service of the particulars
(An additional 28 days from extension made by acknowledgement of service can be agreed)
Can you withdraw an admission of a claim?
Only with court’s permission
How can a defendant dispute the court’s jurisdiction?
Tick a box on acknowledgement of service then make an application supported by written evidence within 14 days after filing acknowledgement of service
What happens when def fails to file defence within time limit?
court can enter into default judgement, preventing them from mounting a defence
When can a defendant make an application to set aside a default judgement?
If they can show:
They acted promptly
Have a real prospect of successfully defending
And
There is some reason why the judgement should be set aside
A court must set aside a judgement if
Judgement was entered before expiry of time to respond
Claim has already been paid or settled
Judgement was entered whilst the defendant’s application to strike out or obtain summary judgement was pending
Judgement was entered whilst defendant’s request for time to pay was pending
What is a prayer for relief
The remedy sought
To be included in Particulars of Claim
Defendant must respond to every paragraph of particulars of claim with:
An admission, denial or non-admission
What’s a Part 20 claim?
Defendant’s claims against 3rd parties who might be liable to the claimant or defendant
Counterclaims against the defendant
Don’t need court permission to file it if filed with defence
A counterclaim is a defendant’s claim against the claimant for:
Losses arising from the same set of circumstances involved int he claimant’s claim
Must be brought within the same set of proceedings
Brought by existing defendant against the claimant
Monetary claim in its own right
What is a third-party claim?
Defendant claims that person who is not party tot he action has caused the claimant’s losses
Particulars of claim must be included in or served with the third-party claim
Can file with defence
If want to do it another time, must obtain court permission
When do defences to Part 20 claims need to be served?
Within 14 days of deemed date of service of Part 20 claim
Can a party amend Statement of Case after it has been served?
Only with written consent of all parties or permission of the court
When will a court allow an amendment to add a new party?
If can be shown that new party will allow court to resolve all matters or resolve a connected matter
When can a court substitute a new party?
If existing party’s interest or liability has passed to new party
And
It is desirable so court can resolve matters in dispute
How long do parties have to return Directions Questionnaire?
28 days
What is Directions Notice?
Questionnaire the court sends out with Notice of Allocation in fast track or multi track case, asks for trial length estimate, whether parties complied with PAP, whether experts required etc
When are documents to be exchanged for a small claims hearing?
At least 14 days pre hearing
Steps and time for fast track directions
Disclosure - 4 weeks
Witness statements exchange - 10 weeks
Expert reports exchange - 14 weeks
Pre-trial checklists sent at 20 weeks
Returned 22 weeks
Trial at 30 weeks
When do disclosure reports need to be filed in multi track?
At least 14 days before Case Management Conference
When do costs budgets need to be filed in multi track?
7 days before Case Management Conference
Notice required for interim applications
At least 3 clear days (5 if by phone)
Don’t need to give notice if good reason (party against whom order is issued has 7 days after service to make set aside application)
What must a summary judgement application show?
That the other party has no real prospect for success and no compelling reason why case should proceed to trial
Can’t be made before defendant has received particulars of claim and served an acknowledgement of service or defence
When should an applicant for an interim application file and serve case summary and proposed draft order?
No later than 2 days before the hearing
When must applicant for summary judgement service the written evidence on the other party?
At least 14 days before the hearing
When does party opposing summary judgement need to serve evidence in response to applicant’s evidence?
At least 7 days before the hearing
What is an application to strike out?
An interim application asking the court to strike out a claim in the Statement of Case because:
Statement disclosures no reasonable grounds for making or defending claim
Statement is an abuse of court’s process
Or
There has been a failure to comply with a rule, practice direction or order
What are the grounds for an order for interim payment
Defendant has admitted liability
Claimant has obtained judgement but sum to be paid hasn’t been assessed yet
Court is satisfied that is the action proceeded to trial, the claimant would obtain judgement for a substantial sum
Note interim payments are always discretionary
When should an application for interim payment be made and what should be in it?
Should invite other party to make an interim payment before applying
Can’t make an application until time for filing acknowledgement of claim has passed
Application must be supported by evidence and served at least 14 days before hearing.
Should include:
Sum sought
Matters for which it is sought
An estimate of expected judgement
And
In PI, a schedule of both past and future loss
How long can a party be imprisoned for contempt?
2 years
Grounds for enjoined party to seek to discharge an injunction
Applicant failed to provide all relevant information (material non-disclosure)
Applicant failed to comply with terms of the injunction
Facts do not support injunction
Injunction is oppressive
There has been a material change in circumstance since injunction granted
Or
Claimant failed to prosecute claim with due speed after obtaining injunction
Grounds for enjoined party to seek to discharge an injunction
Applicant failed to provide all relevant information (material non-disclosure)
Applicant failed to comply with terms of the injunction
Facts do not support injunction
Injunction is oppressive
There has been a material change in circumstance since injunction granted
Or
Claimant failed to prosecute claim with due speed after obtaining injunction
What is a freezing injunction?
Prohibits enjoined person from disposing of specified assets
Applications can only be made to high court and need to prove:
Justifiable course of action
claimant has good, arguable case
Defendant has assets within the jurisdiction
And
Real risk that the defendant may dispose of or dissipate those assets before judgement can be enforced
Party seeking injunction is usually required to make an undertaking to pay damages if injunction improvidently granted and to notify enjoined party and third parties (such as bank) of right to seek variation
Material nondisclosure
Failing to provide all relevant information
Search order
If it’s clear the defendant will not obey rules of disclosure and may destroy incriminating documents or property, can ask court to make search order allowing them to search for and potentially seize evidence that might otherwise be destroyed
Can only be obtained from High Court
Independent supervising solicitor usually appointed to explain the order to the enjoined party and their rights
Claimant’s solicitor required to give an undertaking to return original documents within 2 days and secure property taken
Grounds for search order
Strong prima facie case on the merits of the case
Reasons for claiming the enjoined party might hide or destroy the evidence
And
Clear evidence the property or documents are in the enjoined party’s possession
What documents does the duty to disclose extend to
Any document within the party’s control
Includes docs not in their possession if they have a right to control the doc
Has control if:
Have physical possession
Right to possession
Right to inspect
Right to take copies
Had it in possession but no longer have it
What documents does the duty to disclose extend to
Any document within the party’s control
Each party must make reasonable and proportionate search for docs
If document is removed or destroyed, court and other party must be informed of its existence and reason for destruction - adverse inference can be drawn
3 sections of disclosure list for fast track and PI multi track
Docs in its control they do not object to the other party inspecting
Docs in its control they object to the other party inspecting (with reasons)
Docs no longer in its control - stating when they were last in their control and where they are now
How many days do directions usually allow for parties to serve list of docs for disclosure then how many days for inspection to take place?
28 from date of directions order
Inspection within 7 days
In non-PI multi track, when does disclosure report need to be filed?
14 days before first Case Management Conference
Or otherwise with the Directions Questionnaire
What should be in application for specific disclosure?
Party should first make written request for the info
Include: a description of the docs and why they are relevant
Why it is reasonable and proportionate for them to be disclosed
The grounds for believing they exists
And
Safeguards that can be provided
Include evidence in support of
Legal advice privilege
Protects communication between client and their solicitor in which legal advice is sought in a relevant legal context
Litigation privilege
Protects communications with third parties (barristers, experts) relating to pending or contemplated litigation
Common interest privilege
Occurs when there are multiple defendants or group actions
May send privileged docs to each other and claim these docs are still privileged from inspection by other parties
Without prejudice privilege
Protects discussions regarding potential settlement that the parties agreed were not to be referred to in court to the detriment of a party
Public interest immunity
Protects against disclosure of docs on the basis that disclosure might harm the nation or administration of justice
Who can waive privilege?
Only the client
What is direct evidence?
(Oral) evidence from witness who perceived the facts
Circumstantial evidence
Evidence that does not directly establish a fact but that allows the court to decide whether a particular fact existed
How many days before the hearing does a witness summons need to be served?
At least 7 days
Can expert witnesses give opinions?
Yes, if derived from special knowledge, skill or training that is not within ordinary experience of the judge
Need to be reasonably certain and demonstrate the basis of opinion and conclusions
Generally, expert evidence is given in a written report. Oral evidence can be given upon showing:
It is likely to have an impact on the outcome
It will assist the judge
There is a risk of injustice if expert evidence not tested and
Cost of them attending is not disproportionate
Court may allow parties to instruct their own experts if:
Issues complex or high value
Parties already have their own from pre-action phase and more cost effective for both to continue
Different schools of thought to particular relevant issue
Or
Issue on which experts are focusing is significant tot the outcome of the action: liability, quantum of damages
Tomlin Order
Type of consent order which confirms the parties have agreed a stay because they reached a settlement along with a schedule confirming amounts to be paid, by whom and for how much
Because it includes stay of proceedings, if a party defaults proceedings can pick up where they left off
How to address District Judge
Written title: District Judge [name]
In court or correspondence: Judge
How to address Circuit Judge
Written title: His/Her Honour Judge
Your honour in court
Judge in correspondence
How to address Masters
Master
How to address High Court judge
Written title: the honourable Mr/Ms Justice [name] - [name] J for abbreviated
My Lord/Lady in court
Judge in correspondence
How to address Court of Appeal judge
Written title: The Right Honourable Mr/Ms Justice [name]
In court: My Lord/Lady
In correspondence: Lord Justice
Who prepares and bears cost of the bundle?
Claimant’s solicitor
Make one for the court and one for each party
File 3-7 days before trial
Possible grounds for appeal
Decision is wrong in fact, law or exercise of the court’s direction
And/or
Decision is unjust because of serious procedural or other irregularity in the proceedings
Indemnity principle
Party cannot recover more from an opponent than they are liable to pay their own legal rep
(Ie can’t recover solicitor’s usual fee if the solicitor has given them a discount)
Cost assessment: Standard basis
Court only allows proportionate costs
Any doubt exercised in favour of paying party
Costs assessment: indemnity basis
When court has doubts in receiving party’s favour
Court does not consider proportionality, so it is difficult for the paying party to object to costs unless it is able to say it was unreasonable for the solicitor to do the work at all
Usually used only as a type of sanction
When should statement of costs be filed in lower value cases or interim applications?
24 hours before hearing or 2 days before a trial
And judge makes summary assessment of costs payable at conclusion of hearing
What is a security for costs order?
Interim application if defendant is concerned the claimant wont be able to pay defendant’s costs if they win
Claimant may be required to pay money into court or provide a bond
When is a security for costs order available?
Claimant resident outside the jurisdiction
Claimant is a company and reason to believe it will be unable to pay costs
Claimant has changed address since claim started with a view to evading consequences of litigation
Claimant failed to provide address or gave incorrect one
Claimant acting as a nominal claimant (suing for benefit of another)
OR
Claimant moved assets outside jurisdiction to make it difficult to enforce an order against them
What is a wasted costs order?
Issued by court requiring solicitor or party to pay the costs of the other party if the solicitor acted improperly, unreasonably or negligently
Conduct caused unecssary cost
And it is ‘just’ to make the order
How much notice does a creditor have to give a debtor of intention to take control of goods (once have writ/warrant of control)?
7 days
Goods must be seized within 12 months of the notice
How quickly must an enforcement agent sell goods from seizure?
Within 7 days
Proceeds to be used to discharge debt plus enforcement costs
When might a third-party debt order be appropriate?
When judgement debtor has money in a bank, so bank gives money to them instead of to the debtor
In commercial cases where judgement debtor is owed money by a third party, who then pays debt directly to judgement creditor
Name of claim form
N1
Attachment of earnings order
if a judgement debtor is an individual in regular employment, creditor can apply to County Court for AoEO to compel debtor’s employer to make regular deductions from earnings then pay them into court
If the solicitor files the claim in County Court, what are the three amounts the solicitor can claim as damages on the claim form?
not more than £10,000, More than £10,000, or More than £25,000.
more than £100,000/50 for PI if claim to be filed at high court
disregard interest, costs , contributory negligence and any counterclaim
Negotiation
informal discussions between parties
can be “without prejudice” - not relied on or referred to in court
arbitration
semi-formal, neutral third party hears evidence and resolves dispute through final award
no strict rules of evidence
legally binding
mediation
informal, neutral third party assists disputing parties in reaching a resolution
confidential and WP
rules of evidence dont apply, can bring up anything
not binding until an agreement is signed
mediator facilitates not rule on merits
costs borne by both parties
