Dispute Resolution Flashcards
1
Q
When does time start and stop running for the purposes of limitation?
A
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
2
Q
What are the general time-limits in the Pre-Action Protocol procedure?
A
D should respond to PAP in 14 days in a straightforward case, and no more than 3 months in a complex case
3
Q
What are the time-frames for the Personal Injury Protocol?
A
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
4
Q
Is the decision of the arbitrator enforceable?
A
Yes, if the court gives judgment in terms of the award
5
Q
When does time start to run if the victim of a tort dies within 3 years of the tort?
A
3 years from the date of death OR
3 years from the date of knowledge of the tort by the PRs
6
Q
In what circumstances can a Claimant make an application for pre-action disclosure?
A
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
7
Q
Can an application for pre-action disclosure be sought against a non-party?
A
Yes, but only if it will support the claim and is necessary to dispose of the matter fairly
8
Q
Can an application be made for pre-action inspection of property?
A
Yes, if the property will become the subject matter of proceedings and it is relevant to issues in the proceedings
9
Q
Can a proposed defendant recover costs if the Claimant fails to issue proceedings?
A
No, no costs are recoverable for an abandoned claim if the Claimant does not issue
10
Q
What must be included in the Claim form (N1 when issuing proceedings?)
A
Names and Addresses of the Parties (spelt correctly)
Details of the Claim
Remedy Claimed
Value of the Claim
11
Q
What type of claim is it if the parties do not dispute the facts?
A
Part 8 claim
12
Q
What suffices for personal service?
A
- 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
13
Q
Will service be good if the recipient throws the forms on the ground?
A
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
14
Q
What type of service is acceptable?
A
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
15
Q
How do we calculate deemed service?
A
On the second business day after the forms were served by whatever means (not including weekend, bank holiday, good Friday or Christmas day)
16
Q
True of false - any time period set out in the CPR refers to clear days?
A
True, that means that for example, the defence has 14 clear days to file an AOS (not including the date of deemed service)
17
Q
When can an application for summary judgment be made?
A
As soon as the Defendant files the AOS
18
Q
What are the rules for service if the Defendant’s whereabouts are unknown?
A
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.
19
Q
How can a Defendant indicate that service was not valid?
A
By stating this on the AOS within 14 days
20
Q
When is permission required for service outside the jurisdiction?
A
- 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
21
Q
How can the Defendant request for an extension of time to file a defence?
A
- 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
22
Q
If an admission has been made, can this be withdrawn by the Defendant?
A
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
23
Q
What can the Defendant do with the AOS?
A
- 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
24
Q
When must the Defendant dispute the Court’s jurisdiction?
A
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
25
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.
26
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
27
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.
28
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
29
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
30
What type of Third Party (Part 20) Claims can the Defendant make?
1. A counterclaim against the C - without the court's permission if filed with their defence
2. A claim against a third party that the D blames for the C's loss - without the court's permission unless court directs otherwise
3. A claim seeking contribution from another D in the proceedings - without the court's permission if filed with their defence
4. 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
31
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
32
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
33
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)
34
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)
35
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
36
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
37
What costs are available to recover in the small claims track?
None, but £750 expert fees
38
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
39
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.
40
What claims are assigned to the multi-track?
Claims in excess of £25,000 or where the trial will last more than one day
41
What are the rules for experts in the multi-track?
Parties generally permitted to instruct their own experts, but require permission from the Court
42
What are the distinguishing features of multi-track cases?
Costs budgets
CMC
Parties may generally instruct their own experts
43
When must the Directions Questionnaire be returned?
Within 28 days, and there is no opportunity to extend
44
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
```
45
How long do the Parties have to apply to vary the Directions Order given?
14 days
46
In Multi-track cases, when must disclosure reports be filed?
14 days before the CMC or with the Directions Questionnaire
47
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
48
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
49
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
50
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
51
How long from date of an order made in connection with a no-notice interim application, does the defendant have to dispute the order?
7 days
52
What is the test for an application for summary judgment?
The other side has no real prospect of success and there is no other compelling reason for the case to proceed
53
What is the test for an application to strike out the claim?
The statement of case discloses no reasonable grounds for bringing or defending the claim
The statement of case is an abuse of court process
There has been a failure to comply with a rule, practice direction, or order
54
What are the filing deadlines before the hearing of an application for summary judgment/ interim payment?
Claimant - files evidence 14 days before hearing
Defendant - files evidence in response 7 days before hearing
Claimant - files evidence in response 3 days before hearing
55
What is an undertaking in damages in connection with an application for an injunction?
When the applicant for summary judgment gives an undertaking to compensate the defendant for any loss as a result of the injunction
56
On what grounds can an injunction be discharged?
Among other things, that the injunction is oppressive
57
To which court must an application for a freezing injunction be made?
To a judge in the High Court
58
What is the test for granting of a freezing injunction?
There is a justifiable cause of action
The Claimant has a good, arguable case
The defendant has assets within the jurisdiction and
There is a real risk that the Defendant may dispose of those assets before judgment can be enforced
59
How can a defendant apply for discharge of a freezing injunction?
If they offer other security for the Claimant's claim and/or show that the Claimant is guilty of material non-disclosure
60
What is necessary for the Claimant to obtain a search order?
There must be a strong prima facie case on the merits of the underlying claim
The defendant's activities must cause very serious potential or actual harm to the claimant's interests
There must be clear evidence that the property or documents are in the Defendant's possession and a real possibility that the material may be destroyed before an application can be made on notice
61
What are the solicitors' undertakings with respect to the search order?
Independent solicitor:
- To explain the meaning and effect of the order to the Defendant
- To inform the Defendant of their right to seek legal advice
- To prepare a written report on execution of the order
Claimant's solicitor:
- To return the original documents to the Defendant within 2 days
-
62
What is included in standard disclosure (fast track and personal injury multi-track)
- Documents on which party relies
- Documents which adversely affect their case
- Documents which assist the other party's case
- Documents which adversely affect the other party's case
63
What is meant by 'control'?
Documents in their possession and document which are no longer in their possession but that they have a right to possess
64
What is the standard for the party's search for documents?
A reasonable and proportionate search (a disclosure list will need to be signed to confirm this)
65
What do the Parties have to set out in their disclosure list?
A list of documents in their control that they do not object to the other party inspecting
A list of documents that they object to the other side inspecting
A list of documents no longer in its control
66
What is the deadline for providing disclosure under standard disclosure?
28 days
67
What must a party do in order to exercise their right to inspection?
They must give notice to the other party who must permit inspection within 7 days
68
To what documents is disclosure limited in small claims cases?
documents necessary and proportionate to resolve the case
69
When must the disclosure report in a multi-track case be filed?
14 days before the first CMC
70
When can a party apply for specific disclosure?
When a party believes that the other party's disclosure was inadequate. However, the party should make a written request to the other party before issuing an application.
71
When can an application for pre-action disclosure be made against a third party?
If the case involves freezing injunctions, search orders, applications for preservation of property, or requests for further information
72
What happens if a solicitor mistakenly discloses a privileged document to the other side?
The party who receives it may only use it with the permission of the court
73
What can a party do if they fail to serve a witness statement but wish to rely on the evidence?
The defaulting party can apply to deduce the evidence if they can show a good reason for failing to submit the statement
74
What must a party do if it is not possible to obtain a witness statement before the date for exchange listed in the Directions?
They must obtain court permission and serve a witness summary which summarises the factual issues the statement will cover
75
Do applications for freezing injunctions and search orders have to be supported by affadavit?
Yes
76
If a witness is unable to come to court their statement will be considered hearsay evidence. What will the court consider when deciding what weight to place on it?
- Whether it would have been reasonable or practicable for them to attend
- Whether the statement was made at the same time as the event
- Whether the statement involves multiple hearsay
- Whether there was any motive to misrepresent the statement or conceal facts
- Whether the original statement was edited
77
What is the procedure for relying on hearsay evidence?
The party wishing to rely on it must serve a notice on their opponent.
Within 14 days of this notice, the other party can then seek to call the witness to trial (if they know their address) OR serve a notice to attack the witness's credibility
78
What happens if a witness is declared a hostile witness?
The party calling them can cross-examine them on the facts of the case
79
When must a notice to admit facts be served on an opponent?
21 days before trial
80
What happens if a notice to admit facts was served, the facts were not admitted by the other party, and then the fact was proved at trial?
The court may order the party who refused to admit the facts to pay the costs associated with proving the facts at trial
81
What happens if the parties cannot agree the identity of a single joint expert?
The court will choose from a list provided by the parties
82
Is the court required to give directions for a single joint expert in the fast track?
Yes
83
In which track is the court most likely to allow the parties to instruct their own experts?
In the multi-track
84
How long do the parties have to ask questions of the expert?
28 days from sending the report
85
What is a Tomlin Order?
An order which confirms that the parties have agreed settlement and that the case is stayed pending fulfilment of the settlement terms
And
a schedule confirming the amount to be paid and to whom
86
When does a pre-trial hearing take place?
10 weeks before trial - a case summary of no more than 500 words must be provided setting out what is in dispute, what facts are agreed and a synopsis of the evidence required
87
How far in advance of trial must a witness summons be served on a witness
7 days
88
What are the requirements for the trial bundles?
The claimant must prepare 6 bundles for the trial and bear the expense of preparation. The bundles must be filed between 3-7 days before the trial is to take place.
89
What are the costs implications of discontinuance?
The claimant who has discontinued is liable to pay the costs of the defendant in defending the action
90
What are the grounds for appeal in a civil case?
The decision is wrong in fact, law or the exercise of the court's discretion
OR
The decision is unjust because of serious procedural or other irregularity in the proceedings
91
What is the time-limit for a party to apply for appeal?
Within 21 days of the judgment
92
If permission is refused on the papers, how long does a party have to request an oral hearing to hear the application to appeal?
7 days from the refusal of permission
93
What does the appeal hearing consist of?
It is limited to a review of the lower. decision. It is not a re-hearing and no new evidence can be adduced without permission.
94
What is the indemnity principle?
That a party may not recover more costs than that which they owe to their legal reps
95
How are costs assessed on the standard basis?
The court will allow proportionate cost and exercise any doubt in favour of the paying party
96
How will the Court assess costs on the indemnity basis?
Costs must be reasonably incurred and reasonable in amount and any doubt will be resolved in favour of the receiving party
97
When must cost budgets be filed?
With the Directions Questionnaire if the case is worth less than £50,000 or 21 days before the first CMC if the value is £50,000 or more
98
Once a Costs Management Order has been made, how much leeway do parties have to depart from the budget?
normally 20%
99
What happens if no budget is filed?
No costs are awarded!
100
In what cases will a summary assessment of costs be most appropriate?
In low value claims and interim applications, otherwise it will be a detailed assessment
101
When will costs be assessed on the detailed basis and when will they be summarily assessed?
For lower value claims, costs will be assessed on the summary basis
102
For detailed costs assessment, when must a bill of costs be served on the opponent?
Within 3 months of the judgment
103
When does the paying party file their points to dispute following receipt of the bill?
21 days
104
What does provisional assessment mean?
The Judge will consider the reasonableness of the bill on paper and then indicate an amount of costs that they would be prepared to sanction (up to £75,000)
105
Can the receiving party challenge the provisional assessment?
Yes, within 21 days, and they will ask for the matter to go to a detailed assessment
106
When must costs be paid?
Within 14 days of the costs certificate
107
What is a security for costs order?
It is a Court order made when the defendant is concerned that the claimant will not be able to pay the D's costs if they lose.
The Court will grant the order if the the defendant can show the claimant resides outside the jurisdiction, the claimant is a company and there is reason to believe it will not be able to pay, or the claimant has taken steps with regard to its assets to make it difficult to enforce an order for costs
108
What is qualified one-way costs shifting?
In personal injury claims, the C will not pay the D's costs if the claim fails unless:
- The claim was fundamentally dishonest
- The claim was made for the financial benefit of another
- The claim was struck out for disclosing no cause of action / abuse
Does not apply if they rejected a Part 36 offer
109
When is a wasted costs order granted?
When the solicitor's conduct has been improper, unreasonable or negligent
110
If a party wishes to withdraw a Part 36 offer, when will the withdrawal take effect?
After the expiry of the relevant period
111
What happens if a party wishes to withdraw a Part 36 offer but the other party accepts during the relevant period?
The offeree can apply to the court for permission to withdraw the offer within 7 days of the notice of acceptance by the other side
112
Part 36 offers: Defendant makes an offer, Claimant rejects the offer, and then beats that offer at trial
No costs consequences
113
Part 36: Defendant makes an offer, Claimant rejects that offer and then fails to beat that offer at trial
Claimant pays the D's costs on the standard basis from the expiry of the relevant period (and its own costs thereafter)
114
Part 36: Claimant makes an offer, Defendant rejects that offer, and Claimant fails to beat the offer
No costs consequences
115
Part 36: Claimant makes an offer, Defendant rejects the offer, and Claimant beats the offer at trial
- Interest on the judgment at 10% above base rate for period after offer expired
- Costs on the standard basis until the expiry of the offer. Costs on an indemnity basis from the expiry of the relevant period with interest at 10% above base rate
- Additional damages (10% of the judgment up to £500,000 and 5% thereafter)
116
What are the interest provisions on court judgments?
High Court judgments carry interest at 8% per annum
County Court judgments over £5000 carry interest at the same rate as the High Court.
County Court Judgments under £5000 carry no interest but a judgment over £600 can transfer to the High Court for enforcement.
117
What is an oral examination?
An order for an oral examination is used to force the losing party in a case to come to court to provide information about its means and assets
118
What is the process of enforcement of a judgment?
1. The High Court will forward a writ of control to the enforcement officer
2. The County Court will forward a warrant of control to the enforcement officer
3. Enforcement officer will take control
119
How much notice must be given to the debtor that their assets will be seized, and how long after must the goods be seized?
7 days. And seizure must take place within 12 months
120
How long does the agent have to sell the goods seized?
7 days
121
What is a third-party debt order?
When the debtor has money in the bank or is otherwise owed money, the third party debt order requires this amount to be paid to the creditor instead
122
What is a charging order and when may it be obtained?
When the debtor has an interest in land. This will rank as an equitable mortgage which gives the creditor the right to apply for a sale. This applies even if land is in joint ownership.
123
Is an attachment of earnings order available in the High Court?
No, it is County Court only
124
What happens if the debtor is in an EU country?
If the contract states that E&W courts have jurisdiction, the creditor can issue a claim in the UK
125
What happens if the debtor is outside the EU?
If the country has a reciprocal agreement with the UK, the creditor can trace the debtor and pursue them in the UK, with the court's permission
