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SQE 1 FLK1 > Dispute Resoltuion > Flashcards

Dispute Resoltuion Flashcards

1
Q

What is arbitration

A

One of the alternative dispute resolution- a substitute for litigation. A third party is involved who is neutral that will make a decision which is binding.

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2
Q

Is arbitration voluntary ?

A

Yes

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3
Q

Is litigation voluntary ?

A

No

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4
Q

What is litigation?

A

The process of going through legal proceedings to resolve a dispute against one or more parties

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5
Q

Can the parties withdraw once litigation starts

A

Usually Neither parties can withdraw without paying the opponent’s costs.

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6
Q

What happens if a part refuses to go through ADR

A

Failure to attempt settlement by ADR may have a significant impact on any subsequent order of costs

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7
Q

What is ADR (Alternative Dispute Resolution)?

A

1) ADR refers to settling disputes outside of traditional litigation.
2) It is a collective term for processes like negotiation, mediation, and arbitration.
3) Litigation is considered the last resort, and clients may face sanctions if they refuse ADR.

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8
Q

What is Negotiation in ADR?

A

Negotiation is a form of ADR where parties and their lawyers attempt to resolve disputes through discussions, either formally or informally.

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9
Q

What is Mediation in ADR?

A

1) Mediation involves an independent third party helping the parties reach a solution, but they cannot impose it.

2) It is voluntary unless ordered by the court and happens “without prejudice,” meaning it cannot be used in court if ADR fails.

3) The process is confidential, and if it fails, the court won’t know until after liability and damages are dealt with.

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10
Q

What is the Nature of ADR?

A

1) Voluntary unless ordered by a court.
2) Parties can withdraw at any time before reaching a settlement.
3) The third party cannot impose a solution (except in arbitration).
4) The court may impose sanctions for failure to engage in ADR

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11
Q

What is Arbitration?

A

1) Arbitration is a voluntary process where parties agree to resolve disputes through an independent arbitrator, either before or after a dispute arises.
2) The arbitration decision is binding and enforceable.
Arbitration can be agreed to through a
3) contract or once a dispute occurs

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12
Q

How Does Litigation Differ from ADR?

A

Litigation is not voluntary; once a case is started, withdrawal is usually not possible without paying the other party’s costs.

If ADR fails, the court will impose a solution and enforce it through judgment.

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13
Q

What Happens if a Party Fails to Engage in ADR?

A

1) Solicitors must discuss ADR options with clients.
2) Failure to engage may result in cost sanctions imposed by the court.
3) The Civil Procedure Rules 1998 require parties to consider ADR seriously.
4) A party that refuses ADR must provide a witness statement explaining why.

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14
Q

What Factors Does the Court Consider in ADR?

A

The court will consider the nature of the dispute, the merits of the case, previous settlement attempts, cost, and whether ADR has a reasonable chance of success

Failure to engage with ADR can result in a cost penalty.

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15
Q

What Are the Advantages of Mediation?

A

1) Mediation is cheaper, quicker, and more flexible than arbitration or litigation.
2) It is private, and parties can withdraw at any time.
3) Mediation preserves relationships and allows for creative, non-judicial solutions

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16
Q

Disadvantages of Mediation?

A

1) Not suitable for disputes involving legal rulings, injunctions, fraud, or misconduct.
2) Lack of formal disclosure may lead to an unjust result.
3) Privacy may be a disadvantage if public vindication is needed.
4) A party may walk away dissatisfied if mediation fails.

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17
Q

Enforcement of Mediation Agreements

A

1) Agreements made in mediation are not automatically binding, unlike court judgments.
2) If an agreement is reached, the parties enter a contract, and a breach may lead to a lawsuit

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18
Q

What governs civil litigation in England and Wales?

A

The Civil Procedure Rules 1998.

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19
Q

What do the Civil Procedure Rules dictate?

A

The procedure to be followed when pursuing a claim through the courts.

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20
Q

What is the aim of the Civil Procedure Rules?

A

To provide a more user-friendly system for resolving disputes, especially for litigants in person.

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21
Q

How do courts ensure compliance with procedure?

A

By making directions, setting timetables, and imposing sanctions if necessary.

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22
Q

Where are civil disputes dealt with?

A

In either the County Court or the High Court.

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23
Q

Who can bring proceedings in a civil court?

A

Individuals, organisations, or companies.

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24
Q

Who hears most interim applications and trials under £25,000?

A

District judges in the County Court or High Court.

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25
Q

Who hears trials over £25,000?

A

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

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26
Q

What is the role of the court manager?

A

A senior civil servant who oversees the court office and manages formal documents.

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27
Q

Who serves court documents and enforces court orders?

A

Bailiffs and High Court enforcement officers.

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28
Q

Why is evidence important in the pre-commencement stage?

A

confirm the validity of the claim and assess its prospects of success.

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29
Q

What are pre-action protocols?

A

Rules governing the steps parties should take before commencing a court case, including identifying disputes and sharing information.

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30
Q

What happens if a pre-action protocol is not followed without good reason?

A

A sanction may be imposed.

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31
Q

How is a civil claim commenced?

A

By serving a claim form on the defendant along with particulars of the claim.

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32
Q

What must a defendant do if they wish to contest a claim?

A

File a defence at court and serve it on the claimant.

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33
Q

What happens after a defence is filed?

A

The court allocates the matter to a track based on the value and complexity of the case.

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34
Q

What must parties disclose during interim matters?

A

All relevant documents that impact the case, even if they do not assist their own position.

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35
Q

What evidence must parties exchange before trial?

A

Witness statements, expert reports, and any other evidence they wish to rely on.

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36
Q

What does the judge decide at trial?

A

Issues of liability, quantum (damages), and costs.

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37
Q

What can a party do if dissatisfied with a judgment?

A

Appeal all or part of the trial judge’s decision.

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38
Q

What happens if damages or costs are unpaid?

A

The creditor can apply to the court to enforce the judgment, often involving seizure of the debtor’s belongings.

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39
Q

Why are limitation periods important in civil claims?

A

To prevent indefinite threats of litigation and ensure evidence remains reliable.

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40
Q

What is the consequence of missing a limitation period?

A

The defendant can raise a technical defence, and the claim may be statute-barred.

41
Q

What is the limitation period for contract or tort claims?

A

Six years from the date of the cause of action.

42
Q

When does the limitation period begin in contract claims?

A

From the date the breach of contract occurs.

43
Q

When does the limitation period begin in tort claims?

A

when the damage occurs in negligence cases.

44
Q

What is the limitation period for personal injury claims?

A

Three years from the date of the cause of action or knowledge of the injured person.

45
Q

How does the limitation period for children differ in personal injury cases?

A

It starts running from their 18th birthday.

46
Q

What is the limitation period for latent damage in negligence?

A

six years from the cause of action or three years from the date of knowledge of the damage, but no more than 15 years from the negligent act or omission

47
Q

What is a specified claim?

A

A claim for a fixed amount of money, such as a debt owed where the amount can be calculated mathematically (e.g., from an invoice).

48
Q

What is an unspecified claim?

A

A claim where the court must determine the amount payable, such as in damages claims.

49
Q

What is an example of a specified claim?

A

The price of goods sold or commission due under express contractual terms.

50
Q

What are the steps to analyze a breach of contract case?

A
  1. Establish the existence of a contract.
    1. Identify the terms relied on (express and/or implied).
    2. Prove a breach of those terms.
    3. Determine the factual consequences of the breach.
    4. Prove damage and loss.
51
Q

What must parties comply with before issuing court proceedings?

A

Pre-action protocols or the Practice Direction on Pre-Action Conduct and Protocols (PDPAC).

52
Q

What steps are required under pre-action protocols?

A

1) Claimant writes to the defendant with concise claim details.
2) Defendant responds within a reasonable time (14 days for simple cases, 3 months for complex ones).
3) Parties disclose key relevant documents.

53
Q

Where are civil disputes in England and Wales dealt with?

A

Either by the County Court or the High Court.

54
Q

What happens if a case is issued in the wrong court?

A

It may cause delays and additional expenses due to a subsequent transfer.

55
Q

Where must a claim worth £100,000 or less be started?

A

In the County Court.

56
Q

Where can personal injury claims worth less than £50,000 be started?

A

Only in the County Court.

57
Q

When can a case be started in the High Court?

A

If the claim exceeds £100,000 or involves complexity, legal significance, or public importance.

58
Q

What cases does the County Court handle?

A

More straightforward cases, including money claims up to £100,000 and both specified and unspecified claims.

59
Q

Where are most civil claims issued?

A

The Civil National Business Centre (CNBC) in Northampton.

60
Q

What is Money Claim Online (MCOL)?

A

A platform for online claims for specified sums up to £100,000, allowing for issuing, tracking, and enforcement of claims.

61
Q

What are the three divisions of the High Court?

A

1) King’s Bench Division – handles contract and tort actions.
2) Chancery Division – deals with land, trusts, inheritance, partnerships, and company law disputes.
3) Family Division – resolves family disputes like divorces and adoptions.

62
Q

What are the Business and Property Courts?

A

A term for specialized courts handling complex business disputes, including the Commercial Court and Technology and Construction Court

63
Q

What documents are needed to commence proceedings?

A

1) Claim form (Form N1).
2) Particulars of claim.
3) Any required annexed documents (e.g., contracts)

64
Q

When are proceedings formally started?

A

Once the claim form has been issued by the court.

65
Q

Why might a defendant file an acknowledgement of service?

A

To defend the claim but needs more time to draft a full defence due to compiling evidence.

66
Q

What does filing an acknowledgement of service achieve?

A

extends the time to file a defence from 14 days to 28 days

67
Q

By when must the defence be filed?

A

Within 14 days of service of the particulars of claim, or within 28 days if an acknowledgement of service is filed.

68
Q

What is a counterclaim?

A

A claim pursued by the defendant against the claimant as part of their response

69
Q

What happens if the defence cannot meet the deadline?

A

The other party can agree to a 28-day extension, totaling 56 days from the service of particulars of claim

70
Q

What is required for extensions beyond 56 days?

A

Court approval

71
Q

What is default judgment?

A

A judgment entered by the court when the defendant takes no action.

72
Q

Under what conditions can default judgment be entered?

A

When the defendant fails to file an acknowledgement of service or defence within the relevant time period.

73
Q

What happens if the claim is for an unspecified sum?

A

The court grants default judgment, but a disposal hearing is required to decide damages.

74
Q

How soon must payment be made once judgment is entered?

A

Within 14 days

75
Q

What are the grounds for setting aside default judgment under CPR Part 13?

A

1.Mandatory Ground: Judgment was wrongly entered (e.g., entered too early or already paid).
2. Discretionary Ground: Defendant has a real prospect of defending or another good reason exists.

76
Q

What form is used to apply to set aside default judgment?

A

Form N244, supported by a witness statement.

77
Q

Who pays costs if the application is granted on a mandatory ground?

A

The claimant, for entering judgment incorrectly.

78
Q

When can a claimant discontinue a claim?

A

At any point during proceedings, with written consent from other parties or court permission.

79
Q

What must the claimant file and serve to discontinue a claim?

A

A notice of discontinuance, with any required consents attached.

80
Q

Who is liable for costs when a claim is discontinued?

A

The claimant, unless the court orders otherwise.

81
Q

What is a consent order?

A

A legally binding agreement between two parties

82
Q

What are the formalities for a consent order?

A
  1. Drawn up in agreed terms.
    1. Expressed as “By Consent.”
    2. Signed by legal representatives of all parties involved.
83
Q

What is a Tomlin order ?

A

A Tomlin order stays the claim on agreed terms that are set out either in a schedule to the order or separately.

84
Q

What are statements of case, and what is their purpose?

A

Statements of case are served between parties and filed at court to ensure each party knows their opponent’s case at an early stage, helping them assess its strength.

85
Q

Why must statements of case be carefully drafted and reviewed?

A

Because the court will only decide on the issues raised in the statements of case during the trial.

86
Q

What starts the process in a case?

A

The claim form and particulars of claim.

87
Q

What happens if the case is contested?

A

The defendant files a defence, and they may also file a counterclaim, requiring the claimant to serve a defence to the counterclaim.

88
Q

What happens if a party requires more details about another party’s case?

A

They may file a request for further information, and a response must be served.

89
Q

Who signs the statements of case if prepared by a solicitor?

A

They are signed in the name of the solicitor’s firm.

90
Q

What is an ethical duty of a solicitor when drafting statements of case

A

A solicitor must not mislead the court.

91
Q

What must the claim form or particulars of claim contain?

A

A signed statement of truth that its contents are believed to be true.

92
Q

What balance must the court maintain in a security for costs application?

A

The court must balance the position of the claimant (C) against the defendant (D).

93
Q

What discretion does the court have in awarding security for costs?

A

The court has discretion to decide whether to obtain security for costs and may award it if it considers it just in certain circumstances.

94
Q

What are the key conditions for awarding security for costs?

A

1) The claimant is resident outside the jurisdiction of England and Wales.
2) The claimant is an impecunious company.
3) The claimant has taken steps regarding their assets that make enforcement of a cost order difficult.

95
Q

What factors influence the court’s discretion in security for costs applications?

A

1) Strength of the claim and defence.
2) Claimant’s ability to provide security (must show a good prospect of success).
3) Causes of the claimant’s impecuniosity.
4) Promptness of the application.
5) Whether the claimant has assets within the jurisdiction.

96
Q

What does the court specify in an order for security for costs?

A

The court specifies the amount and the date by which the claimant must make the payment.

97
Q

Can a court order a non-party to pay costs?

A

Yes, under Part 46, the court has discretion to make an order against a non-party.

98
Q

Are external litigation funders at risk of a costs order?

A

No, family, friends, or fundraisers with no interest in the outcome are not at risk.

SQE 1 FLK1 (3 decks)

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