Dispute Resolution Flashcards
When does time start and stop running for the purposes of limitation?
Time starts to run from the day after the accrual of the cause of action and stops running when the claim form is received by the court
What are the general time-limits in the Pre-Action Protocol procedure?
D should respond to PAP in 14 days in a straightforward case, and no more than 3 months in a complex case
What are the time-frames for the Personal Injury Protocol?
Response from D within 21 days, who will then be afforded 3 months to investigate the claim
If D admits liability, then the claimant has to send the medical report and then has to wait 21 days to issue
Is the decision of the arbitrator enforceable?
Yes, if the court gives judgment in terms of the award
When does time start to run if the victim of a tort dies within 3 years of the tort?
3 years from the date of death OR
3 years from the date of knowledge of the tort by the PRs
In what circumstances can a Claimant make an application for pre-action disclosure?
if the documents requested would be disclosed under standard disclosure and disclosure now would fairly assist in disposing of the claim without the need to issue
Can an application for pre-action disclosure be sought against a non-party?
Yes, but only if it will support the claim and is necessary to dispose of the matter fairly
Can an application be made for pre-action inspection of property?
Yes, if the property will become the subject matter of proceedings and it is relevant to issues in the proceedings
Can a proposed defendant recover costs if the Claimant fails to issue proceedings?
No, no costs are recoverable for an abandoned claim if the Claimant does not issue
What must be included in the Claim form (N1 when issuing proceedings?)
Names and Addresses of the Parties (spelt correctly)
Details of the Claim
Remedy Claimed
Value of the Claim
What type of claim is it if the parties do not dispute the facts?
Part 8 claim
What suffices for personal service?
- In the case of an individual, leaving the proceedings with the individual being served (unless nominated solicitors)
- In the case of a company, leaving with a person holding a senior position with the Company
- In the case of a partnership being sued in the name of the firm, by leaving with a partner
Will service be good if the recipient throws the forms on the ground?
Yes, as long as the forms are handed to the person and the general nature of the documents is explained, service is good even if the recipient hands them back or throws them on the ground
What type of service is acceptable?
Service by Fax and E-mail require express consent
DX is fine if the party’s address for service includes a DX and the number is on the party’s writing paper and they have not indicated that service will not be accepted by this method
How do we calculate deemed service?
On the second business day after the forms were served by whatever means (not including weekend, bank holiday, good Friday or Christmas day)
True of false - any time period set out in the CPR refers to clear days?
True, that means that for example, the defence has 14 clear days to file an AOS (not including the date of deemed service)
When can an application for summary judgment be made?
As soon as the Defendant files the AOS
What are the rules for service if the Defendant’s whereabouts are unknown?
if the C believes that the Defendant no longer lives at an address, the C must take reasonable steps to ascertain the new address. Otherwise, they can serve at the Defendant’s last known address.
How can a Defendant indicate that service was not valid?
By stating this on the AOS within 14 days
When is permission required for service outside the jurisdiction?
- Permission is not required if the D lives in Scotland or Northern Ireland
- Permission is required to serve outside of the jurisdiction if it can be shown that the Court of E&W is the most appropriate forum for the resolution
If this is granted, a Defendant may apply to have the order set aside
How can the Defendant request for an extension of time to file a defence?
- The parties can agree for an extension for a further 28 days (56 days in total)
- Anything beyond this would have to be approved by the Court
If an admission has been made, can this be withdrawn by the Defendant?
Yes, with permission of the court. The Court will consider:
- The prejudice to the parties
- The reasons why the admission was made
- The stress that the party was under when they made the admission
- The interests of the public
- When the application to withdraw wad made
What can the Defendant do with the AOS?
- Seek a further 14 days to file the defence
- Admit the Claim but ask for time to pay
- Dispute the Court’s jurisdiction
Remember that a limitation issue must be raised in the DEFENCE
When must the Defendant dispute the Court’s jurisdiction?
On the AOS - within 14 days of deemed service of the Particulars
If the Defendant then files a defence, it is likely to be considered a submission to jurisdiction
What is a default judgment and when is it granted?
If the defendant fails to file a defence within the specified period, the C can apply for default judgment.
What is the test for an application to set aside the default judgment?
The Defendant has a real prospect of success AND there is some other good reason why the defendant should be allowed to defend the claim
When will a default judgment be set aside because it has been wrongly entered?
- The judgment was entered before expiry of the time to respond.
- The claim has already been paid or settled.
- The judgment was entered whilst the defendant’s application to strike out or obtain
summary judgment in respect of the claim was pending. - The judgment was entered whilst the defendant’s request for time to pay was pending.
How can a Claimant discontinue a Claim?
By filing a notice of discontinuance and the Defendant may be able to recover costs of defending the claim thus far
What do Particulars of Claim for a Road Traffic accident have to include?
A brief description of the nature of the collision
Details of the time, date, and place of the occurrence and
Allegations of negligence against the defendant and
Details of any relevant conviction
Details of any injuries suffered
A schedule of past and future loss and expense
What type of Third Party (Part 20) Claims can the Defendant make?
- A counterclaim against the C - without the court’s permission if filed with their defence
- A claim against a third party that the D blames for the C’s loss - without the court’s permission unless court directs otherwise
- A claim seeking contribution from another D in the proceedings - without the court’s permission if filed with their defence
- A claim against a third party who the D has a claim against arising out of the same facts (e.g. vicarious liability) - WITH the Court’s permission
When must a defence to a Part 20 claim be served?
Within 14 days of the date of service of the Part 20 claim. If an additional party fails to defend the claim, they are deemed to admit the main action
On what basis may a party object to a request for further information?
On the basis that the request is unnecessary, irrelevant or improper
The responding party is unable to provide the information
The party requesting the information gave an insufficient time to reply
The expense of complying with the request would be disproportionate
When will the Court accept an amendment to add a new party to the proceedings?
If it is desirable to add a new party so the court can resolve all matters in dispute in the proceedings
(if limitation has not expired)
When will the court allow a party to be removed?
If it is not desirable for them to be a party to the proceedings (regardless of limitation period)
When will a court allow a party to be substituted?
The existing party’s liability has passed to the new party AND
It is desirable to substitute the new party so the court can resolve the matters in dispute
When will the Court add or substitute a party if the limitation period has expired?
They will only do so if the limitation period was current when original proceedings were started AND the addition or substitution is necessary.
They will substitute in situations where:
- There was a mistake in the name of the party on the Claim form
- The claim cannot be carried on against the original party unless the new party is substituted
- The original party has died or had a bankruptcy order made against them
What costs are available to recover in the small claims track?
None, but £750 expert fees
What costs are recoverable in the fast track?
Recoverable costs must be proportionate to the amount in dispute and the parties’ conduct in bringing and defending the claim must have been reasonable
What expert evidence is allowed in the fast track?
Emphasis on written rather than oral evidence. The use of a single joint expert is encouraged.
What claims are assigned to the multi-track?
Claims in excess of £25,000 or where the trial will last more than one day
What are the rules for experts in the multi-track?
Parties generally permitted to instruct their own experts, but require permission from the Court
What are the distinguishing features of multi-track cases?
Costs budgets
CMC
Parties may generally instruct their own experts
When must the Directions Questionnaire be returned?
Within 28 days, and there is no opportunity to extend
What are the time-frames in the Standard Fast-Track Directions?
Disclosure - 4 weeks Exchange of witness statements - 10 weeks Exchange of expert reports - 14 weeks Pre-trial checklist sent out - 20 weeks Pre-trial checklists returned - 22 weeks Date of trial - 30 weeks
How long do the Parties have to apply to vary the Directions Order given?
14 days
In Multi-track cases, when must disclosure reports be filed?
14 days before the CMC or with the Directions Questionnaire
In multi-track cases, when must cost budgets be filed?
if less than £50,000, with the Directions Questionnaire. If more than £50,000, 21 days before the CMC
What happens if a party does not comply with Directions?
(1) The claim may be struck out if an unless order is not complied with
(1) Penalise them in costs
(2) require the defaulting party to pay money into court
(3) disbar them from relying on certain evidence
(4) restrict the number of witnesses they can call
Can a party apply for relief from sanctions after failing to comply with directions?
Yes, if the party has a good reason for failing to comply. The court will consider the seriousness of the breach and the reasons for the breach. It will not be granted if it is not a good reason
What notice does a party applying for an interim order have to give to the other party?
3 days notice or 5 if by telephone
Notice not required where it is a freezing injunction / search order and notice would defeat the purpose of the application
