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Civil Litigation > dispute resolution > Flashcards

dispute resolution Flashcards

1
Q

do you have to arbitrate

A

may be bound by contract or statute

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2
Q

can you litigate after arbitration

A

no - arbitration is a substitute for litigation

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3
Q

is an arbitration award enforcable

A

yes can apply to HC to have it enforced as if it was a court judgement

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4
Q

is the outcome of arbitration binding

A

yes and can be enforced by the courts

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5
Q

is arbitration open to the public

A

no - confidential and private

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6
Q

when does the arbitration act 1996 apply

A

when agreement to arbitrate is in writing

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7
Q

how to propose mediation to the other party

A

by letter

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8
Q

what happens at mediation

A

independent third party acts as go between

each party sends written statement to mediator then discuss on a without prejudice basis

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9
Q

are agreements reached at mediation enforceable

A

no - would have to enter it into a contract and then sue for breach of contract

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10
Q

is ADR compulsory and can the court force you to participate

A

no - must consider it but always voluntary but penalties for not participating unless you can justify it

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11
Q

is ADR confidential

A

yes

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12
Q

is ADR without prejudice

A

yes

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13
Q

can a solution be imposed on parties though ADR

A

not apart from through arbitration

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14
Q

can parties withdraw from ADR

A

yes any time before settlement is reached

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15
Q

do you have to accept solution proposed during ADR

A

no

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16
Q

when wouldn’t it be appropriate to do ADR

A

if other party unlikely to cooperate, cannot be trusted to comply with award, will inevitably fail,

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17
Q

when are penalties imposed for not participating in ADR

A

when they cannot justify their position - burden is on the other party to show refusal to participate is unreasonable

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18
Q

when does solicitor need to confirm that they have advised their client re ADR

A

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

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19
Q

what is a court manager

A

in charge of the court office

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20
Q

who are docs sent to court addressed to

A

court manager

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21
Q

what are judges called in central office in lodon

A

masters

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22
Q

what do masters deal with

A

interim applications and trials worth less than 25k

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23
Q

can a limitation period be extended

A

only in exceptional circumstances

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24
Q

personal injury liability period

A

3 years from cause of action or date of knowledge of person injured

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25
Q

children - difference for limitation period

A

doesn’t begin until they’re 18

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26
Q

negligence limitation periods where damage is latent

A

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

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27
Q

tort and contract limitation periods

A

6 years from cause of action

cause of action is breach of contract or damage occur from breach of duty

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28
Q

when does limitation period begin

A

the day after the cause of action

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29
Q

can the limitation period be altered by contract

A

yes

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30
Q

can under 18 bring a claim

A

would need a litigation friend

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31
Q

who can be a litigation friend

A

must be able to fairly and competently conduct proceedings with no adverse interest

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32
Q

can a litigation friend reach a valid settlement involving a child or protected party

A

only valid if approved by court

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33
Q

costs incurred when complying with PAP should be….

A

proportionate

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34
Q

steps taken to comply with PAP should be…

A

reasonable and proportionate

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35
Q

effect of not complying with PAP

A

court may impose costs on indemnity basis, increase or decrease interest on damages

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36
Q

how soon must D respond to Cs letter before claim

A

reasonable time, usually 14 days but could be up to 3 months if complex

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37
Q

effect of knowingly making a false statement in PAP letter or other doc prepared in anticipation of legal proceedings

A

contempt of court

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38
Q

PAP for debt claims - who uses it and who can it be used against

A

businesses v individuals or sole traders

not businesses v businesses unless sole trader

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39
Q

what is the PAP for debt claims

A

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

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40
Q

PAP for professional negligence

A

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

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41
Q

which law applies?

A

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

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42
Q

who has jurisdiction - when D or C live outside England

A

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)

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43
Q

how to decide if a case should be issued in HC or CC

A

issue in CC if 100k or under

issue in HC if over 100k or for personal injury 50K

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44
Q

when do you have a choice between issuing your claim in CC and HC

A

if case if over 100k or for personal injury 50k

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45
Q

can a case be transferred from HC to CC

A

yes judge can decide to do this if you issue your case in HC

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46
Q

3 places a CC claim can be issued

A

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

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47
Q

when do proceedings commence

A

when claim form is sent to court to be issued

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48
Q

who can sign statement of truth on claim form

A

C or solicitor

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49
Q

impact of doc not having statement of truth

A

strike out and cannot rely on content

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50
Q

when do proceedings start

A

when claim form is issued by court

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51
Q

when does time stop running for limitation period

A

when claim form is received at court office

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52
Q

how long do you have to serve claim form on parties

A

4 months after it is issued

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53
Q

can a claim form be served on a law firm

A

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

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54
Q

can claim form be served by fax or email

A

only if they agree to this - if fax on header that is agreement but this doesn’t apply to email

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55
Q

can claim form be served electronically or by alternative methods

A

court can sanction alternative methods or if parties agree

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56
Q

what if D refuses to accept documents when served with claim form

A

can be left near them

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57
Q

can claim form be served by DX

A

yes if DX on heading

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58
Q

who to serve with claim form if you have no address or solicitor details

A

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

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59
Q

when is claim form deemed served

A

2 business days after step required occurred- different rules for other docs

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60
Q

which document has different rules re deemed date of service

A

claim form

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61
Q

normal rules re deemed date of service

A 
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
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62
Q

do particulars of claim always need to be included in claim form

A

no can be served with claim form, included in claim form or served separately

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63
Q

how long to serve particulars of claim if not served with claim form

A

within 14 days of service of claim form but no later than 4 months after issue of claim form

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64
Q

how long to serve claim form

A

4 months - unless serving it outside the jurisdiction then 6 months

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65
Q

do you need special permission to serve claim form outside of england

A

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

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66
Q

what options does D have after receiving claim form and particulars of claim

A

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

67
Q

who must a copy of the defence be served on

A

all parties

68
Q

who is responsible for serving copies of the defence on the parties

A

the court

69
Q

can deadline for filing defence be extended

A

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

70
Q

what is a default judgement

A

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

71
Q

can you get a default judgement if pending application by D for summary judgement or to have application struck out

A

no

72
Q

can you get a default judgement for specified and unspecified sums

A

yes either indicate amount in application or will have disposal hearing

73
Q

how to add a claimant

A

consent must be filed at court

74
Q

can a party to the case be added, removed or substituted

A

yes but permission is needed if claim has been served

75
Q

if limitation period has not expired when can a party be added, removed or substituted to claim

A

needed to resolve matter or because liability has passed

76
Q

if limitation period has expired when can a party be added, removed or substituted to claim

A

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

77
Q

form used to have default judgement set aside

A

N244

78
Q

what evidence is needed to have a default judgement set aside

A

witness statement

79
Q

3 orders judge can make when application is made to have default judgement set aside

A

set it aside - D can continue to defend claim
judgement remains in place - C can proceed with enforcement
conditional order

80
Q

what is a conditional order

A

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

81
Q

2 grounds on which D can apply for default judgement to be set aside

A

mandatory - if entered early before Ds deadline or claim already paid in full
default - real prospect of Ds defending successfully or other good reason

82
Q

is the promptness of D applying to have default judgement set aside relevant

A

yes court will consider this when deciding whether to have judgement set aside

83
Q

who pays costs of application to have default judgement set aside

A

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

84
Q

can a claim be discontinued

A

yes any time

85
Q

do you need permission to discontinue a claim

A

no not unless an interim injunction was granted

86
Q

restrictions on discontinuing a claim

A

all Cs must consent or get court permission
no permission needed unless interim injunction
file and serve notice of discontinuance on parties to proceedings

87
Q

how to discontinue a claim

A

file and serve notice of discontinuance on parties to proceedings - if consent needed a copy of this must be attached to the notice

88
Q

can a claim be discontinued against 1 D but continue it against another D

A

yes `

89
Q

if proceedings are discontinued when do they end

A

on date that discontinuance notice is served on D

90
Q

who pays the costs of a discontinued case

A

C - solicitor must explain this to C

91
Q

how can D dispute the jurisdiction of the court

A

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

92
Q

can C recover costs if the case is settled prior to the issue of proceedings

A

not unless parties agree

93
Q

2 ways settlement can be recorded after issue of proceedings

A

consent order or tomlin order

94
Q

can a LiP use a consent order

A

no

95
Q

requirements for a consent order

A

signed by legal representatives
make clear it is a consent order
include all terms agreed

96
Q

can judge refuse to seal consent order

A

yes but rare

97
Q

is a consent order confidential

A

no

98
Q

is a tomlin order confidential

A

the schedule is

99
Q

can a consent order include terms that are outside the court’s power to order

A

no

100
Q

why is a tomlin order better than a consent order

A

terms kept confidential and can include terms that the court can’t order

101
Q

which terms must appear in tomlin order

A

costs

102
Q

what does a tomlin order do

A

stays proceedings on terms set out in schedule

103
Q

what is a statement of case

A

where parties set out their case

104
Q

will the court consider matters that aren’t in statement of case

A

no so must review it as matters develop

105
Q

which documents are included in statement of case

A 
claim form 
particulars of claim 
defense 
response to defence 
counterclaim 
response to counter claim 
request for further info 
response to request
106
Q

why must you only include in the statement of case assertions that are properly arguable

A

because the solicitor cannot mislead the court

107
Q

what is included in particulars of claim

A

statement of facts and elements of cause of action

if C is seeking interest

108
Q

when does the court have a general discretion to award interest

A

damages in negligence

normally awarded from when loss was sustained

109
Q

what if D does not state in the defence if they deny or admit or not admit an allegation

A

assume they admit it

110
Q

what does it mean if D states an allegation is not admitted

A

means D has no knowledge of particular matter alleged

111
Q

what should D do if they think the limitation period has expired

A

state this in defence and burden is on C to prove it hasn’t expired

112
Q

who has the burden of proof re contributory negligence and failure to mitigate loss

A

D

113
Q

2 types of part 20 claims

A

counter claims and

Claims by D for contribution, indemnity, or other remedy ( called additional claims )

114
Q

does D need permission to counter claim

A

not if it is filed with defence

115
Q

Does C need to file a reply to the defence

A

can do but not obligated

116
Q

how long does C have to file defence to counter claim

A

14 days (unless both parties agree extension up to 28 days)

117
Q

what can D do if C does not file defence to counter claim

A

D can get default judgement on the counter claim

118
Q

can amendments to statement of case be made before limitation expiry and before service but after filing

A

yes any time

119
Q

can amendments to statement of case be made before limitation expiry but after filing and service

A

yes with written consent of parties or permission of court

120
Q

can amendments to statement of case be made after expiry of limitation period

A

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

121
Q

when can requests for further info be made

A

any time

122
Q

how long do you have to respond to request for further info

A

reasonable time

123
Q

how to request further info

A

request in writing and give reasonable time for response

124
Q

what matters can further info be requested on

A

matters reasonably necessary and proportionate to enable the applicant to prepare their own case or understand the case they have to answer

125
Q

how to respond to request for further info

A

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

126
Q

what if other party does not respond to request for further info

A

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

127
Q

when is an interim application made by phone

A

if estimated to be 1 hour or less

128
Q

form used to make interim application

A

N244

129
Q

what evidence is needed for an interim application

A

witness statement made by person best able to address relevant points from personal knowledge

130
Q

will there be oral evidence from witness in interim application

A

no - only oral submissions from solicitor, the rest is decided on the papers

131
Q

is a draft order needed for interim application

A

yes attach draft order to application form

132
Q

when to serve application notice on other party re interim application

A

at least 3 clear days before hearing to allow them to respond/object

133
Q

do clear days include weekends and bank holidays

A

no

134
Q

are interim applications made on notice to other party

A

yes generally but some exceptions

135
Q

exceptions that allow interim applications to be made without notice to other party

A

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

136
Q

what sort of duty does an applicant have when making an interim application without notice

A

full and frank disclose - cannot take advantage of absence of other party - must anticipate and raise their arguments

137
Q

what must be served on opponent when interim order is made without notice

A

court order
application notice
supporting evidence

138
Q

how long does respondent have to apply to set aside an interim order

A

7 days of service of court order on them

139
Q

3 types of costs orders for interim applications

A

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

140
Q

what sort of cost order is often used when a conditional order is made

A

costs in case

141
Q

how are costs assessed when a named party’s costs order is made

A

summary assessment, pay within 14 days

142
Q

when would a party seek a summary judgement

A

when case or defence is very weak

143
Q

when will a court give summary judgement

A

C has no real prospect of succeeding
D has no real prospect of succeeding
no other compelling reason why it should go ahead

144
Q

what should submissions for summary judgement be based on

A

part 24 criteria so no need to argue case just show why it should or shouldn’t go to trial

145
Q

which party can apply for summary judgement and when

A

either party at any time - court permission needed if C wishes to apply before Ds deadline for acknowledgement of service / defence

146
Q

is court permission needed to apply for summary judgement

A

only if C wishes to apply before Ds deadline for acknowledgement of service / defence

147
Q

how much notices of a summary judgement hearing must a respondent get

A

at least 14 days

148
Q

how soon must written evidence for summary judgement hearing be serviced by repondent

A

at least 7 days before hearing

149
Q

how soon must written evidence for summary judgement hearing be serviced by applicant

A

at least 3 days before hearing

150
Q

possible orders as a result of a summary judgement applicant

A

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

151
Q

what happens at end of summary judgement application if application is dismissed

A

case management directions are given

152
Q

if C obtains summary judgement for specific amount what costs will C get

A

fixed amount

but C can request summary assessment to try to get higher amount

153
Q

if D obtains summary judgement so claim is struck out what costs does D get

A

summary assessment - C will pay Ds costs

154
Q

if C obtains summary judgement for unspecific amount what is C awarded and how is it calculated

A

costs summarily assessed and disposal hearing to assess damages

155
Q

who can apply for an interim injunction and when

A

either party can apply at any time after proceedings commence

156
Q

what must court be satisfied of to grant an interim application

A

matter is urgent or otherwise in interests of justice

157
Q

was is a cross undertaking

A

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

158
Q

how long does an interim injunction remain in force

A

until matter goes to trial when court decides whether to make the injunction final

159
Q

american cyanamid criteria

A

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

160
Q

are interim injunctions obtained with or without notice

A

usually with notice but can be without notice is good reason

161
Q

when can an interim injunction be obtained without notice

A

when there is good reason

162
Q

2 forms of interim injunction

A

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

163
Q

injunctions that can be made without notice

A 
freezing order (real risk of disposal of assets)
search order (strong case, potential of serious harm, incriminating evidence in their possession)

Civil Litigation (11 decks)

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