Dispute Res

Question 1

Why engage in ADR?

Answer 1

This can avoid the costly procedure of litigation
Maintains business relationships
A more time efficient method than litigation
Can engage in more creative solutions
Pre action protocols require parties to consider ADR (If unreasonably reject ADR- may face cost consequence

Question 2

What is litigation, and its pros and cons?

Answer 2

Litigation is resolving an issue of dispute in the courts

PROS: binding decision, can obtain all evidence through disclosure process, get to cross examine opposing side,
wide ranging powers – such as damages or injunction
can join third parties to dispute
precedent – can predict outcome, appeal more easily

CONS: costly method, very time consuming and stressful, damage business relationship, no confidentiality (publicly available info on dispute) – impact reputation
Enforcement not guaranteed (whether D has resources)- note C can enforce in court where failure to comply

Question 3

What is arbitration, and its pros and cons?

Answer 3

Arbitration is relying on a third party – usually experts in the chosen field, (arbitrator) to assess the facts and come to a binding decision on its outcome entirely independent from the court

PROS: binding decision (arbitration award- enforceable in court), less costly than litigation, confidentiality maintained,
o flexibility in agreement and arbitrator choice
o commercially favourable agreements (beyond law)

CONS: arbitrator can be expensive
o Can’t bind third parties
o Not create legal precedents

Question 4

What is mediation, and its pros and cons?

Answer 4

Mediation is a neutral third party helping the disputing parties come to a mutual agreement to solve the issue

PROS: confidentiality maintained, creative solutions can be agreed on (post business arrangements), cheaper, time-effective

CONS: not binding agreement (unless contract agreed on- then enforceable in courts), party can walk away at anytime
o Not always experts
o Not suggested for complex issues
o No guaranteed outcome (cost may be wasted)
o Cooperation required

Question 5

Who are parties to a claim?

Answer 5

The claimant is the one starting the claim and the defendant is the party which a claim is being brought against

Question 6

What is a cause of action?

Answer 6

Breach of contract claim
Damages - C to be put in position had contract breach not occured
Tort claim for negligence - breach of D duty to C
Damages - C put in position had negligence not occurred
Point of law in which the claim is based on
Once facts understood, evidence must be gathered to prove facts (witnesses, expert reports, accounts showing loss)

Question 7

What are the limitations periods?

Answer 7

Breach of contract - 6 years from the date the terms of the contract was breached- (eg. failed to deliver goods)
Tort claim - 6 years from the date of negligence (damage occurred)
Personal injury - 3 years from the date of the injury or where became aware the injury occured
Latent damage – hidden damage (X applicable for domestic home) – 6 years from date of damage or 3 years from finding out damage (can’t bring claim over 15 years from date of damage)

Question 8

What are rules on applicable laws for contract disputes?

Answer 8

Check what contract states governs the law
General EU rule= applicable law is wherever seller under contract is situated

Question 9

What are rules on applicable laws for tort disputes?

Answer 9

Contract may state what law to use for neg claims
General law in EU – law is where tortious damage occurred
If out EU - court determine applicable law

Question 10

What are rules on jurisdictions for Ds outside UK?

Answer 10

Where D is in the UK (eg. holiday), you can serve them with a CF and they will face proceedings here
Where D is outside the UK, requires court permission to serve a CF
Allowed where – real issue between C and D
Contract - breach of contract committed in E/W- by UK law
Damage committed in E/W - covered by UK law
**NOTE - where jurisdiction clause stating dispute can be tried in UK - can serve CF on D with notice form stating the clause

Question 11

What are pre-action steps?

Answer 11

Need to take steps to communicate effectively, exchange information early, act efficiently
Rules governing actions before a claim
Force parties to communicate

Question 12

What are aims of pre-action steps?

Answer 12

To act efficiently and resolve the dispute efficiently and proportionately
In line with overriding objective - narrow issues disputed
Understand the position
Encourage investigation
Settle before court
Solve quickly and efficiently
Reduce costs

Question 13

What must parties do to comply with steps?

Answer 13

C send letter detailing claim (facts, amount claimed)
D respond within reasonable time - 3 months complex/ 14 days simple
Disclose key docs
Consider ADR

Question 14

Why bother with pre-action steps?

Answer 14

Failing to comply with protocol- likely face cost consequences
COST- party failing to comply liable to pay some of the opponents costs
DAMAGES: losing D pays interest on damages (uo to 10%) and if winning C - they may not get interest on damages at all

Question 15

What are rules for which court to start a claim?

Answer 15

Less than 100k= start in county court
Over 100k= choice to elect county or high court
Must elect HC where= over 100k, complex facts, in the public interest

Question 16

How do you add or substitute a party in proceedings?

Answer 16

With the party permission you can add them - must file this at court

WITHIN LIMITATION PERIOD= can remove or substitute party no longer relevant

OUTSIDE LIMITATION PERIOD= the proceedings must have started within LP and can amend where
OG party named by mistake
OG party dead/bankrupt
Claim can’t be carried on without the party
**app to court must be made with evidence

Question 17

How to serve CF within E/W?

Answer 17

You can issue the claim in the court and then serve the CF to the D within 4 months of issue

Ways to serve include:
By post (deemed served on the second business day) - can be to solicitors if they accept
Personal service (deemed served on day if pre 4.30 or otherwise on the next business day) - to the D, can’t be on their solicitors
Fax/email - where consented to this way

Question 18

Can the court order personal service on the D’s solicitor

Answer 18

Court may order personal service on D’s solicitor if there is good reason

Question 19

When must POC be served by?

Answer 19

Served within 4 months of the claim being issued (in jurisdiction)
Served within 6 months of claim being issued (out jurisdiction)
NOTE it must be within 4 months of claim being issued - which may be less than 14 days - worth checking dates!

Question 20

How POC be served separately to CF?

Answer 20

It can be served either with CF or 14 days after it
Can be by personal service/email= on day if 4.30 if next business day if after
First class post= next business day

Question 21

What are statements of claim?

Answer 21

This includes documents that help parties set out their case:
Claim form
Particulars of claim
Defence
Counter claim
Request for further information?

Question 22

What is CF structure?

Answer 22

1)C and D details
2)Brief details of claim
3)The value/amount of claim +court fees
4)When stating value – eg. contract 100k then state that
If specified sum = amount + interest
unspecified= how much C expects to recover
==>Above 10k
==>10-25k
==>Above 25k
==>Above 100k
**Also insert court fee
5)C solicitors cost if amount sought is specified sum
6)Human Rights Act
7)Statement of truth

Question 23

Structure of POC? -

Answer 23

1)Parties status
2)Backround to claim (relevant facts)
3)Contract details (subject matter, purpose, date signed, consideration) – contract attached if written
4)Term of contract (express/implied)
5)Detailed of contract (or duty) breach
6)Consequences of breach of contract/duty (causation) – eg; C faced loss
7)Details of loss suffered
8)Relief claimed (damages) == known as particulars of loss
9)Interest claimed
10)Summarise amount C claims (damages+interest)
11)Statement of truth

Question 24

How must interest be sought in the POC?

Answer 24

State grounds which C is claiming interest
SPECIFIED = interest claimed and method of calculating
UNSPECIFIED= up to courts to calculate

For breach of contract – 3 grounds
Subject to clause in contract
Late payment of commercial debts - between BUSINESS – at 8% above bank rate BoE
s35A Senior Courts Act 1981// s69 County Courts Act 1984 – subject to court discretion for interest
Use this for negligence - where no contract

Question 25

What must defence do for each allegation?

Answer 25

Must state refer to each allegation made in POC and respond with
Admit = D can admit basic facts but also allegations
Deny= Reasons why – different version of events
Not enough information= Requires C to prove (further evidence)

** structure of defence follows that of POC/ contain statement of truth

Question 26

What is counterclaim and how must it be made?

Answer 26

Claim brought by D in response to C- within same proceedings
Particulars of CC within same doc as defence

Once filed - C has 14 days to respond (can extend to 28 days if parties agree- no AOS option)

D can make additional claims such as:
==>Indemnity (claim amount from third party)
==>Contribution (claim third party also jointly liable)

Question 27

How do you amend statement of case BEFORE expiry of limitation period

Answer 27

Can amend SOC anytime before it is served
If already served - can be amended== with either the consent of the party in litigation or the court
Can amend anything in statement of case - must attach:
1)Copy of doc wanting to amend
2)The amendments
3)Application notice
4)Statement of truth

Question 28

How to amend statement of case AFTER expiry of limitation period?

Answer 28

Generally cannot do so without court consent - which can be done where:
1)Add or substitute new claim - where claim arises out of facts as claim already submitted
2)Mistake in party name
3)Alter capacity which party claims (as individual or business)

Question 29

How to request further information about statement of case?

Answer 29

Request must be necessary and proportionate for party to understand case and prepare their own
Request in single doc - requests in separate paragraph and have date where response expected

Response must be:
In writing
Signed by respondent or sol
Dated
Then filed at court
**where fail to respond = make app to court

Question 30

How can the defendant dispute the court’s jurisdiction?

Answer 30

An acknowledgment of service can be used to dispute the court’s jurisdiction. The defendant must indicate their intention to dispute jurisdiction on the acknowledgment form and file an application with evidence within 14 days. If the defendant fails to apply, they will be deemed to have accepted the jurisdiction.

Question 31

What is an acknowledgment of service

Answer 31

Filing an acknowledgment of service gives the defendant more time to file a defense and/or dispute the court’s jurisdiction.

It must be done within 14 days of service of the particulars of claim (PoC). If an acknowledgment is filed, the defendant has 28 clear days from the service of PoC to file a defense.

Question 32

How can the defendant admit all of the claim?

Answer 32

If the defendant is admitting all of the claim and it is a specified sum, they must serve a form of admission within 14 days and make an offer for payment (including method and timing).

The claimant can accept the offer or request judgment if rejected. For an unspecified sum, the court will decide the amount and timing after judgment is requested.

Question 33

How can the defendant admit part of the claim?

Answer 33

The defendant must file a form within 14 days of service of PoC. The court notifies the claimant, who has 14 days to either accept the offer, accept but reject the payment terms, or reject the offer entirely. If rejected, the case proceeds to trial.

Question 34

What action can the claimant take if no acknowledgment of service (AoS) or defense is filed within 14 days of receipt of the PoC?

Answer 34

The claimant can request a default judgment, which means there is no trial. If the claim is for a specified sum, the claimant must file for the amount sought along with costs and interest. If unspecified, the court will determine the amount and timing at a hearing

Question 35

What action can the defendant take in the event of a potential default judgment?

Answer 35

The defendant can either accept the default judgment or apply to have it set aside. The defendant must apply as quickly as possible and file an application notice with a witness statement.

2 grounds for setting aside:

Mandatory Ground: If judgment was entered by mistake and the defendant had time to file or did file.
Discretionary Grounds: If the defendant has a real prospect of successfully defending the claim or has a good reason for allowing the claim to continue (e.g., being on holiday).

Question 36

What are some of the key rules on settlement (excluding Part 36 Offers)?

Answer 36

Settlement can happen at any stage, even before the claim form is issued.

Settlement discussions are conducted on a “without prejudice” basis, meaning they cannot be referred to in court.

If the parties wish to keep the settlement confidential, they can use a Tomlin Order, which contains a schedule of payments that is kept confidential.

Question 37

What is a summary judgment and what are the grounds?

Answer 37

A summary judgment allows judgment to be obtained without going to a full trial. It is used when the other side’s case is weak. 2 grounds required to be satisfied are:

1)The claimant or defendant has no real prospect of succeeding (indicating a very weak case).

2)There is no other compelling reason why the case should be heard at trial (e.g., important evidence is unclear, witnesses need to be heard, or the matter is complex and of public interest).

Question 38

What is the procedure for a summary judgment application

Answer 38

The applicant must file an application notice (stating summary judgment is sought), a witness statement, and a draft order.

The notice must explain why the two grounds are satisfied.
Serve the notice, evidence, and draft order on the respondent as soon as possible, or at least 14 clear days before the hearing.
The respondent must file evidence at least 7 clear days before the hearing.

The applicant must reply at least 3 clear days before the hearing.

The defendant can apply for summary judgment at any time, but the claimant can only apply after the defendant files an acknowledgment of service or defence unless they have court permission.

Question 39

What orders can the court give after a summary judgment hearing?

Answer 39

Judgment on the claim (if C is the applicant): the claimant wins, and the case is over.

Strike out/dismissal (if the defendant is the applicant): the defendant wins, and the case is over.

Application dismissed: the applicant fails, and the case proceeds.

Conditional order: the applicant is partly successful, but the court believes the respondent has a chance of winning. The case continues, but the respondent must pay a sum of money into court or take specific action. Failure to do so means the case ends.

Question 40

What is the purpose of an interim injunction?

Answer 40

The purpose is to prevent a party from doing something that would be damaging to the applicant or their case. It can be a standard interim injunction or a specific one like a freezing injunction (to stop the other party from moving assets that could be used to satisfy a judgment) or a search order (to prevent the destruction of documents).

Question 41

What are the grounds required for an interim injunction?

Answer 41

There is a serious question to be tried.
Damages are not adequate (hence the need for an injunction).
Granting an injunction would cause less harm to the respondent than not granting one would cause to the applicant (balance of convenience).

Question 42

What is the procedure for applying for a WITH notice injunction?

Answer 42

The applicant needs to file:
1)An application notice in the court where the claim started, explaining the request for an injunction and the reasons for it.
2)The application notice must include written evidence (either a witness statement or affidavit) and a draft order.
3)Serve the documents on the respondent as soon as possible after filing, or at least 3 clear days before the hearing.

Question 43

What is the procedure for applying for a WITHOUT notice injunction?

Answer 43

The application can be made at any time, even before a claim form has been issued. The process is as follows:

1)File an application notice.
2)File the application notice in the High Court for a freezing injunction or search order, or in the court where the claim started.
3)The application notice must state what order the applicant is seeking and why.
4)Attach a draft order to the application notice.
Provide evidence in support of the application (must be an affidavit for freezing injunctions and search orders).
5)No notice is served on the respondent.

If the application is granted, serve a copy of the order, application notice, and witness statement/affidavit on the other party. The order must include details on whether there will be a hearing and how the other party can appeal.

Question 44

What order may the court grant if the injunction application is successful?

Answer 44

The court either grants the injunction or dismisses the application.

If granted, the applicant may be required to give a cross-undertaking in damages (applicant promises to compensate the respondent for any damages suffered if it turns out the injunction was incorrectly granted)

Question 45

What is an interim payment?

Answer 45

An interim payment is a down payment by the defendant to the claimant on damages or debt owed. It allows a claimant with a strong claim to pursue the case without facing financial hardship. It is the opposite of a security for costs (where the claimant makes a payment to court).

Question 46

What are the grounds for an interim payment?

Answer 46

1)D has admitted liability.
The claimant has won the case and obtained a judgment for damages yet to be assessed.
2) The court is satisfied that, if the case went to trial, the claimant would win. This ground is used if the application is made early in the case and the claimant is financially stretched.

Question 47

What is the procedure for an interim payment? What must the evidence detail? When should docs be served?

Answer 47

C must first attempt to get a voluntary payment from D.
If unsuccessful, C can apply for an interim payment.
The application can only be made after 14 clear days have passed since the service of the particulars of claim.
C must file the following:
1) An application notice
2) A draft order
3) Supporting evidence (e.g., witness statement or affidavit)

The evidence must detail:
1)The amount being sought
2)The likely final damages
3)Why the grounds for the application are satisfied

These documents must be served on D at least 14 clear days before the hearing.

D must submit any evidence at least 7 clear days before the hearing.

C can reply to D’s evidence at least 3 clear days before the hearing.

Question 48

What will the court do if the application for the interim payment is successful?

Answer 48

The court will assess a reasonable sum for D to pay, based on the likely final damages. The amount must be one D can pay without undue financial burden.