dispute resolution Flashcards
do you have to arbitrate
may be bound by contract or statute
can you litigate after arbitration
no - arbitration is a substitute for litigation
is an arbitration award enforcable
yes can apply to HC to have it enforced as if it was a court judgement
is the outcome of arbitration binding
yes and can be enforced by the courts
is arbitration open to the public
no - confidential and private
when does the arbitration act 1996 apply
when agreement to arbitrate is in writing
how to propose mediation to the other party
by letter
what happens at mediation
independent third party acts as go between
each party sends written statement to mediator then discuss on a without prejudice basis
are agreements reached at mediation enforceable
no - would have to enter it into a contract and then sue for breach of contract
is ADR compulsory and can the court force you to participate
no - must consider it but always voluntary but penalties for not participating unless you can justify it
is ADR confidential
yes
is ADR without prejudice
yes
can a solution be imposed on parties though ADR
not apart from through arbitration
can parties withdraw from ADR
yes any time before settlement is reached
do you have to accept solution proposed during ADR
no
when wouldn’t it be appropriate to do ADR
if other party unlikely to cooperate, cannot be trusted to comply with award, will inevitably fail,
when are penalties imposed for not participating in ADR
when they cannot justify their position - burden is on the other party to show refusal to participate is unreasonable
when does solicitor need to confirm that they have advised their client re ADR
in the directions questionnaire solicitor must confirm they explained to their client the need to try to settle, options available and possible cost penalties of refusing
what is a court manager
in charge of the court office
who are docs sent to court addressed to
court manager
what are judges called in central office in lodon
masters
what do masters deal with
interim applications and trials worth less than 25k
can a limitation period be extended
only in exceptional circumstances
personal injury liability period
3 years from cause of action or date of knowledge of person injured
children - difference for limitation period
doesn’t begin until they’re 18
negligence limitation periods where damage is latent
6 years from cause of action or 3 years from knowledge of damage - whichever is later - but no later than 15 years after date of act
tort and contract limitation periods
6 years from cause of action
cause of action is breach of contract or damage occur from breach of duty
when does limitation period begin
the day after the cause of action
can the limitation period be altered by contract
yes
can under 18 bring a claim
would need a litigation friend
who can be a litigation friend
must be able to fairly and competently conduct proceedings with no adverse interest
can a litigation friend reach a valid settlement involving a child or protected party
only valid if approved by court
costs incurred when complying with PAP should be….
proportionate
steps taken to comply with PAP should be…
reasonable and proportionate
effect of not complying with PAP
court may impose costs on indemnity basis, increase or decrease interest on damages
how soon must D respond to Cs letter before claim
reasonable time, usually 14 days but could be up to 3 months if complex
effect of knowingly making a false statement in PAP letter or other doc prepared in anticipation of legal proceedings
contempt of court
PAP for debt claims - who uses it and who can it be used against
businesses v individuals or sole traders
not businesses v businesses unless sole trader
what is the PAP for debt claims
C to give full info on debt including update statement of account with interest and charges and how to pay
D gets 30 days to respond
no court proceedings issued within 30 days
PAP for professional negligence
give preliminary notice - where C notifies D of intended claim and financial value
D inform insurer
D acknowledge within 21 days
C write letter of claim
D has 21 days to acknowledge and 3 months to investigate
letter of response / letter of settlement
6 months to negotiate / start proceedings / must consider ADR
which law applies?
whatever contract states
or default position
if court is inside EU the MS with the closest connection
if court is outside EU up to the local court and will be a preliminary issue
close connection - where seller/provider lives, land owned, where tort damage occurs, where performer lives
who has jurisdiction - when D or C live outside England
D lives inside EU - D sued in their local courts or where contract was to be performed or where tort harm was caused
D lives outside EU - can issue in england if served in England and Wales (D can dispute if not most appropriate) or if court gives permission (if made, breached, governed here or loss sustained here)
how to decide if a case should be issued in HC or CC
issue in CC if 100k or under
issue in HC if over 100k or for personal injury 50K
when do you have a choice between issuing your claim in CC and HC
if case if over 100k or for personal injury 50k
can a case be transferred from HC to CC
yes judge can decide to do this if you issue your case in HC
3 places a CC claim can be issued
CC money claims center - money only claims for specified ad unspecified sums - if hearing required transferred to hearing centre
CC business center - specified sums up to 100k
CC hearing centre - closest to home or business
when do proceedings commence
when claim form is sent to court to be issued
who can sign statement of truth on claim form
C or solicitor
impact of doc not having statement of truth
strike out and cannot rely on content
when do proceedings start
when claim form is issued by court
when does time stop running for limitation period
when claim form is received at court office
how long do you have to serve claim form on parties
4 months after it is issued
can a claim form be served on a law firm
only if D has nominated them in writing - cannot assume this just because they represented D in pre-action negotiations - once nominated all docs are served on lawyers
can claim form be served by fax or email
only if they agree to this - if fax on header that is agreement but this doesn’t apply to email
can claim form be served electronically or by alternative methods
court can sanction alternative methods or if parties agree
what if D refuses to accept documents when served with claim form
can be left near them
can claim form be served by DX
yes if DX on heading
who to serve with claim form if you have no address or solicitor details
individual - last known address
sole trader - last known address of individual or business
partnership - last known address of partner named in form or business
LLP - principle office or any place of business that has connection with claim in jurisdiction
company - principle office or any place of business that has connection with claim in jurisdiction
when is claim form deemed served
2 business days after step required occurred- different rules for other docs
which document has different rules re deemed date of service
claim form
normal rules re deemed date of service
personal service, delivery to permitted address, fax or email - if served before 4.30pm on business day then on that day, if not then on next business day first class or DX - second day it was posted provided it is a business day or if not then the next business day
do particulars of claim always need to be included in claim form
no can be served with claim form, included in claim form or served separately
how long to serve particulars of claim if not served with claim form
within 14 days of service of claim form but no later than 4 months after issue of claim form
how long to serve claim form
4 months - unless serving it outside the jurisdiction then 6 months
do you need special permission to serve claim form outside of england
no permission needed inside EU but if outside EU need permission
claim form must be accompanied by a notice setting out grounds on which C is entitled to serve it outside jurisdiction
what options does D have after receiving claim form and particulars of claim
defend within 14 days
acknowledgement of service 14 days then defence 28 days from particulars
counter claim with defence
admit part claim - C has 14 days to consider offer and either accept in in full settlement, accept admission but not offer so court decides amount or reject and proceed with claim
admit whole claim unspecified sum - D makes offer and either C accepts it and enters judgement for that amount or C rejects it and then enter judgement and have disposal hearing to agree amount
admit whole claim specified sum- make offer and if C accepts enter judgement for that amount or if C rejects amount then enter judgement and judge decides amount
who must a copy of the defence be served on
all parties
who is responsible for serving copies of the defence on the parties
the court
can deadline for filing defence be extended
yes if all parties agree - max 28 days extension so D has total of 56 days max from service of particulars - any further extension needs courts permission
what is a default judgement
obtained by C without any consideration of facts when D doesn’t respond to particulars of claim with either acknowledgement or defence within time frame
can you get a default judgement if pending application by D for summary judgement or to have application struck out
no
can you get a default judgement for specified and unspecified sums
yes either indicate amount in application or will have disposal hearing
how to add a claimant
consent must be filed at court
can a party to the case be added, removed or substituted
yes but permission is needed if claim has been served
if limitation period has not expired when can a party be added, removed or substituted to claim
needed to resolve matter or because liability has passed
if limitation period has expired when can a party be added, removed or substituted to claim
limitation period had not expired when claim began and needed to resolve matter or because liability has passed or because party was named by mistake
form used to have default judgement set aside
N244
what evidence is needed to have a default judgement set aside
witness statement
3 orders judge can make when application is made to have default judgement set aside
set it aside - D can continue to defend claim
judgement remains in place - C can proceed with enforcement
conditional order
what is a conditional order
D must pay money into court - used if court is concerned defence is being used as delaying tactic where D doesn’t have money to pay
2 grounds on which D can apply for default judgement to be set aside
mandatory - if entered early before Ds deadline or claim already paid in full
default - real prospect of Ds defending successfully or other good reason
is the promptness of D applying to have default judgement set aside relevant
yes court will consider this when deciding whether to have judgement set aside
who pays costs of application to have default judgement set aside
if granted on mandatory ground - C pays Ds costs
if granted on discretionary ground of good reasons costs are usually in the case
if granted on discretionary ground of real prospect of success D pays Cs costs
if application fails D pays Cs costs
can a claim be discontinued
yes any time
do you need permission to discontinue a claim
no not unless an interim injunction was granted
restrictions on discontinuing a claim
all Cs must consent or get court permission
no permission needed unless interim injunction
file and serve notice of discontinuance on parties to proceedings
how to discontinue a claim
file and serve notice of discontinuance on parties to proceedings - if consent needed a copy of this must be attached to the notice
can a claim be discontinued against 1 D but continue it against another D
yes `
if proceedings are discontinued when do they end
on date that discontinuance notice is served on D
who pays the costs of a discontinued case
C - solicitor must explain this to C
how can D dispute the jurisdiction of the court
14 days after acknowledgement of service to dispute jurisdiction otherwise taken to accept it
if dispute is dismissed and case progresses must serve 2nd acknowledgement of service within 14 days
can C recover costs if the case is settled prior to the issue of proceedings
not unless parties agree
2 ways settlement can be recorded after issue of proceedings
consent order or tomlin order
can a LiP use a consent order
no
requirements for a consent order
signed by legal representatives
make clear it is a consent order
include all terms agreed
can judge refuse to seal consent order
yes but rare
is a consent order confidential
no
is a tomlin order confidential
the schedule is
can a consent order include terms that are outside the court’s power to order
no
why is a tomlin order better than a consent order
terms kept confidential and can include terms that the court can’t order
which terms must appear in tomlin order
costs
what does a tomlin order do
stays proceedings on terms set out in schedule
what is a statement of case
where parties set out their case
will the court consider matters that aren’t in statement of case
no so must review it as matters develop
which documents are included in statement of case
claim form particulars of claim defense response to defence counterclaim response to counter claim request for further info response to request
why must you only include in the statement of case assertions that are properly arguable
because the solicitor cannot mislead the court
what is included in particulars of claim
statement of facts and elements of cause of action
if C is seeking interest
when does the court have a general discretion to award interest
damages in negligence
normally awarded from when loss was sustained
what if D does not state in the defence if they deny or admit or not admit an allegation
assume they admit it
what does it mean if D states an allegation is not admitted
means D has no knowledge of particular matter alleged
what should D do if they think the limitation period has expired
state this in defence and burden is on C to prove it hasn’t expired
who has the burden of proof re contributory negligence and failure to mitigate loss
D
2 types of part 20 claims
counter claims and
Claims by D for contribution, indemnity, or other remedy ( called additional claims )
does D need permission to counter claim
not if it is filed with defence
Does C need to file a reply to the defence
can do but not obligated
how long does C have to file defence to counter claim
14 days (unless both parties agree extension up to 28 days)
what can D do if C does not file defence to counter claim
D can get default judgement on the counter claim
can amendments to statement of case be made before limitation expiry and before service but after filing
yes any time
can amendments to statement of case be made before limitation expiry but after filing and service
yes with written consent of parties or permission of court
can amendments to statement of case be made after expiry of limitation period
only to:
alter capacity in which the party claims
correct mistaken name of party
to add or substitute a new claim if this arises out of the same or substantially the same facts as existing claim
when can requests for further info be made
any time
how long do you have to respond to request for further info
reasonable time
how to request further info
request in writing and give reasonable time for response
what matters can further info be requested on
matters reasonably necessary and proportionate to enable the applicant to prepare their own case or understand the case they have to answer
how to respond to request for further info
written, dated, signed by party or solicitor, set out requested info and then response. serve on all parties, file with court and verify with statement of truth
what if other party does not respond to request for further info
apply to court for order - will grant if satisfied request is confined to matters reasonably necessary and proportionate to enable applicant to prepare case or understand case against them
when is an interim application made by phone
if estimated to be 1 hour or less
form used to make interim application
N244
what evidence is needed for an interim application
witness statement made by person best able to address relevant points from personal knowledge
will there be oral evidence from witness in interim application
no - only oral submissions from solicitor, the rest is decided on the papers
is a draft order needed for interim application
yes attach draft order to application form
when to serve application notice on other party re interim application
at least 3 clear days before hearing to allow them to respond/object
do clear days include weekends and bank holidays
no
are interim applications made on notice to other party
yes generally but some exceptions
exceptions that allow interim applications to be made without notice to other party
exceptional urgency or overriding objective of CPR would be best achieved by making an order without notice
must explain in evidence in application form why notice wasn’t given
what sort of duty does an applicant have when making an interim application without notice
full and frank disclose - cannot take advantage of absence of other party - must anticipate and raise their arguments
what must be served on opponent when interim order is made without notice
court order
application notice
supporting evidence
how long does respondent have to apply to set aside an interim order
7 days of service of court order on them
3 types of costs orders for interim applications
named party’s costs - winner gests costs
costs in case - looser of litigation at end of case pays
no order as to costs - each pay their own
what sort of cost order is often used when a conditional order is made
costs in case
how are costs assessed when a named party’s costs order is made
summary assessment, pay within 14 days
when would a party seek a summary judgement
when case or defence is very weak
when will a court give summary judgement
C has no real prospect of succeeding
D has no real prospect of succeeding
no other compelling reason why it should go ahead
what should submissions for summary judgement be based on
part 24 criteria so no need to argue case just show why it should or shouldn’t go to trial
which party can apply for summary judgement and when
either party at any time - court permission needed if C wishes to apply before Ds deadline for acknowledgement of service / defence
is court permission needed to apply for summary judgement
only if C wishes to apply before Ds deadline for acknowledgement of service / defence
how much notices of a summary judgement hearing must a respondent get
at least 14 days
how soon must written evidence for summary judgement hearing be serviced by repondent
at least 7 days before hearing
how soon must written evidence for summary judgement hearing be serviced by applicant
at least 3 days before hearing
possible orders as a result of a summary judgement applicant
judgement on claim - C succeeded and matter will proceed to enforcement
striking out or dismissal of claim - D succeeded to dispose of claim and case ends
application is dismissed - progress to trial
conditional order - application not granted nor is it dismissed
what happens at end of summary judgement application if application is dismissed
case management directions are given
if C obtains summary judgement for specific amount what costs will C get
fixed amount
but C can request summary assessment to try to get higher amount
if D obtains summary judgement so claim is struck out what costs does D get
summary assessment - C will pay Ds costs
if C obtains summary judgement for unspecific amount what is C awarded and how is it calculated
costs summarily assessed and disposal hearing to assess damages
who can apply for an interim injunction and when
either party can apply at any time after proceedings commence
what must court be satisfied of to grant an interim application
matter is urgent or otherwise in interests of justice
was is a cross undertaking
where an interim injunction is granted and the applicant must undertake to pay any damages respondent or other party sustains if it transpires it shouldn’t have been granted
how long does an interim injunction remain in force
until matter goes to trial when court decides whether to make the injunction final
american cyanamid criteria
there is a serious question to be tried
are damages an adequate remedy for either side
the balance of conveniences lies in favour of granting or refusing injunction and
whether there are any special factors
are interim injunctions obtained with or without notice
usually with notice but can be without notice is good reason
when can an interim injunction be obtained without notice
when there is good reason
2 forms of interim injunction
court fixes a date for further hearing with all parties and injunction lasts till that hearing, D can argue it shouldn’t have been granted and it will be set aside
or
tell D that they may apply on notice for order to be varied or set aside - injunction remains in force until trial or further order
injunctions that can be made without notice
freezing order (real risk of disposal of assets) search order (strong case, potential of serious harm, incriminating evidence in their possession)
