Dispute Resolution Flashcards
Define mediation
Independent third party discusses the case with the parties
It is confidential (without prejudice)
Agreement is not binding
Define arbitration
Substitute for litigation
Arises when:
1. Parties are contractually bound to use arbitration; or
2. Parties may agree to arbitration and can choose their own arbitrator with relevant expertise
Once the third party has reached their decision, it is binding on both parties
Winning party may apply to the High Court for permission to enforce the arbitration award as if it were a court judgement
What is the limitation period for a cause of action in contract/tort
6 years from the date of the cause of action
- Tort = when tort is committed (negligence = when damage occurs from breach)
- Contract = as soon as breach of contract occurs
What is the limitation period for personal injury?
3 years from the cause of action/date of knowledge
What is the limitation period for latent negligence?
- 6 years from date of cause of action
- 3 years from date of knowledge of damage
- No later than 15 years after the date of negligent act/omission
What is the pre-action procedure for debt claims?
Claimant must give full information on debt owed along with:
1. Reply form
2. Information sheet
3. Financial Statement forms
Given 30 days to respond
What is the pre-action procedure for professional negligence claims?
Claimant should send a Preliminary Notice containing:
1. Claimant
2. Brief outline of claimant’s grievance
3. General indication of financial value of potential claim
Defendant has 21 days to acknowledge this in writing
- Letter of Response admitting allegation/not
- Letter of Settlement
If a LoR is given but there is no LoS, then the claimant can start court proceedings
C should follow up preliminary notice with a letter of claim giving full details of the issues and attaching the relevant forms to the letter
If the defendant cannot be served in E&W, when can permission from the court be obtained to serve them outside of the jurisdiction?
- When the contract was made/breached in E&W, is governed by English law or contains an agreement conferring jurisdiction on English courts
- When the act causing the damage in tort was committed in E&W/the loss was sustained there
When must a claim be commenced in the County Court and what should the statement of value read on the claim form?
Less than £100,000
For specified claims, state the value
- Excluding interest
For unspecified claims:
a) Not more than £10,000
b) More than £10,000 but not more than £25,000
c) More than £25,000
When can a claim be commenced in the High Court and what should the statement of value read on the claim form?
If the claim is more than £100,000
- £50,000 for PI claims
- Helps case of starting claim in HC if it involves complex facts/points of law and the outcome is important to the public
For unspecified claims:
“Claimant is expected to recover more than £100,000”
What are the 5 methods of service of a claim form?
- Personally
- Partnership = partner/person with control/management of partnership
- Company = senior person
- Limited company = registered office - First class post/DX
- Leaving at specified place
- Fax
- Number included on party’s headed paper is not sufficient
- On the solicitor’s letterhead, it is sufficient - Alternative method authorised by the court
What is the time limit for serving the claim form once it has been issued?
4 months
When is service deemed to have been made for documents other than the claim form?
Personal service/delivering to permitted address/fax/email = if served before 4:30 on a business day, on that day; if not, on the next business day
First class post/DX = second day after it was posted provided that day was a business day; if not, the next business day
What is the limitation period to serve a claim form out of jurisdiction?
6 months from when the claim form is issued
- Notice should be served with the claim form setting out the ground on which the claimaint is entitled to serve outside the jurisdiction together with evidence that E+W is the proper forum
For Scotland/NI, do not need the permission of the court
- For other countries, you do
When can a default judgement be made?
Court must be satisfied that:
- Particulars of claim have been served on the defendant
- Defendant has not filed an acknowledgement of service form/defence within the time period
When may a default judgement be set aside?
Mandatory grounds: Judgement was wrongly entered
Discretionary grounds: (a) defendant has a real prospect of successfully defending the claim (b) there is some other good reason why the defendant should be allowed to defend the claim
Any application to set aside a default judgement must be made promptly
How can a party dispute the jurisdiction of a claim?
It must be stated on the acknowledgement of service (there is a box to tick)
Have 14 days after filing the acknowledgement of service to make a separate challenge
What is the limitation period for a defendant to file a defence?
D must file an acknowledgement of service within 14 days
If so, D has 28 days from service of particulars of claim to make a defence
If not, 14 days from service of particulars of claim
What is the limitation period for filing an acknowledgement of service?
14 days from when the Particulars of Claim are served
When must a particulars of claim form be served on the defendant?
Within 14 days of the claim form being served
When must a defence to a counterclaim be filed?
Within 14 days
- 28 days if extension has been agreed with the defendant
What must be done for an amendment to a statement of case
a) Before expiry of limitation period
b) After expiry of limitation period
Before:
1. Written consent of all parties; or
2. Permission of court
- File statement of case with proposed amendments together with an application notice
- Try and strike a balance between injustice suffered if amendment is refused with injustice the opposing party may suffer if it is granted
After: must be to either
1. Add/substitute a new claim if arises out of (substantially) the same facts
2. Correct a genuine mistake as to the name of the party
3. Alter the capacity in which a party claims
What should an interim application include and when should it be served?
On form N244
Should include:
1. Factual information/evidence in support
2. Anticipate opponent’s case
3. Attach a draft order
Must be served as soon as reasonably practicable, and as a long stop, at least 3 days before hearing
When can a summary judgement be given?
- Court considers that:
a) Claimant has no real prospect of succeeding on the claim; or
b) Defendant has no real prospect of successfully defending their claim; and - There is no compelling reason why the case should be disposed of at trial
What is the procedure for applying for a summary judgement?
Form N244
Claimant cannot apply for a summary judgement until the Defendant has file an acknowledgement of service or a defence
- Unless the court gives permission that they can apply before this
Respondent must:
1. Be given 14 days’ notice of hearing date
2. File and serve written evidence at least 7 days before the hearing
3. If the applicant wishes to rely on further evidence, they should file and serve this at least 3 days before the hearing
When can interim payment be sought and what are the grounds?
Can be sought after acknowledgement of service has expired
- Should try obtaining a voluntary interim payment through negotiations first
Grounds:
1. Defendant has admitted liability
2. Claimant obtained judgement against D for damages to be assessed/sum of money
3. If the case went to trial, claimant would obtain a substantial amount of money
- For this ground, the burden on C is high
- Must prove on the balance of probabilities that they will succeed at trial in obtaining a substantial amount of money
Interim payment sought must be a reasonable proportion of likely final judgement
The order must not cause unfair delay or prejudice to the fair conduct of the trial
What is the overriding objective with regards to case management?
To enable the courts to deal with cases justly and at proportionate costs
What financial values (and any other factors) determine what track a case will be allocated?
- Small claims: less than £10,000
- Fast track: between £10,000 - £25,000
- The trial is expected to last no longer than a day (5 hours) - Multi-track: for claims more than £25,000
Do NOT take into account
- Contributory negligence
- Interest
- Costs
- Any sum not in dispute
When must a cost budget be filed?
Claim is less than £50,000 = filed with the directions questionnaire
Claim is more than £50,000 = no later than 21 days before the first CMC
What is the consequence of a party failing to file their costs budget on time?
The party will automatically be treated as having filed a cost budget only consisting of court fees
The party will not be able to recover any of it’s legal costs, unless the court grants relief to sanctions
What factors are taken into account when a relief from sanctions is being considered by the court?
- Is the breach serious or significant?
- Was there a good reason for breach?
- Evaluate all the circumstances of the case
What types of documents fall within standard disclosure?
Documents which:
1. The party relies upon
2. Adversely affect their own/another party’s case
3. Support another’s case
In the list of documents for disclosure, what types of documents should go in each part?
Part 1 = documents which are within the parties control and which can be inspected
- These should be allowed to be inspected within 7 days of a written request from the other party
Part 2 = In party’s control but there is an objection to inspection
Part 3 = Not privileged but no longer in the party’s control
What does legal professional privilege cover?
Confidential communications between lawyer and client for the sole/dominant purpose of giving/receiving legal advice
When would litigation privilege apply?
- Between lawyer or client and a third party
- Where the dominant purpose is to obtain legal advice/evidence/information
- For use in litigation, which at the time was existing/pending/reasonably in prospect
When would specific disclosure be requested?
When disclosure was inadequate
Order can be to:
1. Disclose a specific document
2. Carry out a search
When is pre-action disclosure permitted?
- Respondent is likely to be a party to subsequent proceedings
- Applicant is also likely to be a party
- Respondent would be obliged to disclose the relevant documents if proceedings had started already; and
- Disclosure is desirable to fairly dispose of proceedings and save costs
When would non-party disclosure be ordered?
- Where documents in question are likely to support the applicant’s case/adversely affect the case of another party; and
- Disclosure is necessary to dispose fairly of the claim and save costs
What is the general rule for serving a witness statement?
Must be served on other parties, setting out all the facts which the witness would be allowed to give orally at trial
If the statement is not served, witness would not be able to speak at trial, unless court gave their permission
What is the difference between an affidavit and a witness statement?
Affidavits are sworn in front of solicitor/other authorised person rather than signed by a statement of truth
What is the general rule and exception regarding witness evidence?
General rule = admissible if relevant; opinion is not admissible
Exception = an opinion can be admissible if it is anchored to the perception of facts
In what circumstances will a party need to serve notice when using hearsay evidence?
Notice does not need to be served if the person who gave the hearsay evidence is going to court to give evidence
- Only if the person who made the hearsay evidence is unable to go to court and provide evidence does notice need to be served
When is it appropriate to appoint a single joint expert?
Where:
1. It is not proportionate to have separate experts
2. SJE is likely to assist in resolving the issue quickly/in a cost-effective way
3. Unlikely to be a range of expert opinion
Fast track = usual for SJE to be appointed
Multi-track = common for parties to instruct their own experts
What is the deadline for serving a witness summons and what is needed for it to be reasonable?
Must be served at least 7 days before the date on which the witness is required to attend trial
To be reasonable, witness should be offered/paid:
a) Sum reasonably sufficient to cover expenses in travelling to and from court; and
b) Compensation for loss of time
Failure to attend could mean a fine for the witness or, in High Court proceedings, they could be imprisoned for contempt of court
What is the deadline for filing a pre-trial checklist? What happens if one or both parties fail to meet the deadline?
Filed at court no later than 8 weeks before trial date
Both parties fail = 7 days to file otherwise claim/defence/counterclaim will be struck out
One party fails = court will fix a hearing date
Purpose is to ensure the parties have complied with all the directions given and make sure the case is ready for trial
Pre-trial hearing may be ordered for trials likely to last more than 10 days
- Judge will personally check matters
- Iron out glitches to not waste court’s resources
When do trial bundles need to be filed by?
7-3 days before start of trial
Usually prepared by claimant’s solicitor
Should not include interim payments/Part 36 offers
Define a hostile and unfavourable witness
Unfavourable = interprets the situation in a different way
Hostile = unwilling to support the party who called them
- Can ask judge to declare witness hostile, allowing the advocate to undermine witness’s credibility/cross-examine them as if they were a witness for the other side
What are the grounds for permission to appeal?
- Real prospect of success; or
- There is some other compelling reason for the appeal to be heard
General rule = permission to appeal is made both to the lower court and the appeal court
What are the time limits for appealing:
a) A CC/HC decision
b) From CoA to SC
a) 21 days
b) 28 days
If the decision is made by the following judge, where will the appeal be made to:
a) District judge of CC
b) Master/district judge of HC
c) Circuit judge
d) High Court judge
a) Circuit judge of CC
b) High Court judge
c) High Court judge
d) CoA
What is the process for granting a leapfrog appeal?
- Grant of leapfrog certificate by trial judge; and
- Grant of permission to appeal by SC
What are the grounds for appeal?
Appellate court are persuaded that the decision of the lower court was:
1. Wrong; or
2. Unjust because of serious procedural irregularity in proceedings of lower court
Only the lower court’s decision will be reviewed
=> the entire case will not be heard again
- Usually will be no fresh evidence, unless the appeal court orders it
What is the procedure for determining costs in:
a) Small claims
b) Fast track
c) Multi-track
a) Legal costs are not recoverable, only disbursements
b) Costs are summarily assessed
c) Detailed assessment of costs
What is the procedure for a summary assessment of costs?
Court should, unless there is good reason to do so, make a summary assessment of costs:
1. At conclusion of fast track hearing; and
2. At any other hearing that has not lasted more than 1 day
File and serve statement of costs no less than:
a) 2 days before fast track
b) 24 hours before interim hearing
Judge will then determine the award of costs
What is the procedure for a detailed assessment of costs?
Within 3 months of date of judgement/order, receiving party must serve on paying party Notice of Commencement of detailed assessment together with their bill of costs and evidence in support
The paying party will have 21 days to challenge the bill
Define the standard basis for assessing costs
- Are the costs reasonably incurred?
- Are the costs reasonable in amount?
- Are the costs proportionate to the matters in issue?
a) Sums in issue
b) Value of any non-monetary relief in issue
c) Complexity of litigation
d) Any additional work generated by paying party’s conduct
e) Wider factors (eg: reputation or public importance)
Any doubt is resolved in favour of paying party
Define the indemnity basis for assessing costs
Awarded as a penalty to reflect the court’s displeasure with the manner in which the parties have behaved pre-action and/or during proceedings
Cost must be:
1. Reasonably incurred; and
2. Reasonable in amount
Any benefit of doubt is given to the receiving party
When and how can a non-party costs order be made?
Court has discretion to order a non-party to meet costs of the unsuccessful party, if:
- They are satisfied that the non-party was the real party interested in litigation; or
- They were responsible for bringing the proceedings
Third party must be added as a party to proceedings and may attend the hearing when the court determine costs
Only be made in exceptional cases
Under what circumstances can a security of costs order be made?
Condition(s) to make an order are satisfied and it is just to make the order
Conditions:
1. Claimant is a resident outside a 2005 Hague Convention State
2. Claimant is an impecunious company who will be unable to pay D’s costs
3. Claimant has taken steps in relation to their assets to make enforcement difficult
Justness: have regard to
1. Strength of claim and defence
2. Claimant’s ability to provide security
3. Causes of claimant’s impecuniosity (eg: was it caused by D?)
4. Property within jurisdiction
5. Timing of application - must be as soon as practicable
What is needed for a Part 36 order to be valid?
- In writing
- Making it clear it is a Part 36 order
- Specify a period no less than 21 days which, if the offer is accepted, D will pay C’s costs; and
- State whether it relates to whole or part of the claim
Claimant’s Part 36 offer is rejected: what happens if C wins and equals/beats their offer?
D will be required to pay an additional amount:
a) Damages up to £500,000 = 10% of sum awarded
b) Damages in excess of £500,000 - £1 million = 10% of first £500,000, and 5% up to max of £75,000
From day 22, D will:
1. Pay interest on damages at max 10% above base rate
2. Be ordered to pay costs on indemnity basis
3. Pay interest on costs on indemnity basis at max 10% above base rate
Claimant’s part 36 offer is rejected: what happens if claimant wins at trial but does not beat their offer?
No extra penalty on either party as neither is at fault
Claimant’s part 36 offer is rejected: what happens if claimant loses at trial?
Claimant will be ordered to pay defendant’s costs on standard basis
Defendant’s part 36 offer is rejected: what happens if claimant wins and beats/equals D’s offer?
Defendant will be ordered to pay:
1. Judgement plus interest as claimed in particulars of claim; and
2. Claimant’s costs on standard basis
Defendant makes part 36 offer which is rejected: what happens if claimant wins but fails to beat D’s offer?
- D pays C’s costs on standard basis from when costs incurred until Day 21
- C pays D’s costs on standard basis from day 22 until judgement
- C pays interest on those costs
What are the consequences of D accepting C’s part 36 offer within relevant period?
Pre-action/no proceedings:
- D will pay agreed sum within 14 days
- D will pay C’s costs on standard basis
Proceedings have been issued:
- D will pay agreed sum within 14 days
- Proceedings will come to an end
- D will pay C’s costs on standard basis
What are the consequences of D accepting C’s part 36 offer after relevant period has expired?
Pre-action/proceedings have been issued:
- D will pay agreed sum within 14 days
- If parties cannot agree and it is not unjust to do so, court will order that:
a) D pays C’s costs up until relevant period expired
b) D pays C’s costs from when relevant period expired to date of acceptance
c) Such costs are to be paid on the standard basis
If proceedings have been issued, these will come to an end
Enforcement of money judgements: explain how ‘taking control of goods’ works and which court enforcement should be sought in
Seize debtor’s possession of an equivalent value owed, which are then sold at a public auction
Choice of court:
a) Less than £600 = County Court for warrant of control
b) £600 - £5,000 = County Court or High Court for a warrant or writ of control
- If High Court is chosen, judgement must be transferred from County Court to HC
c) £5,000+ = High Court for a writ of control
Enforcement of money judgements: what is a charging order and what is the procedure for creating one?
Sits on the asset until it is worth the creditor applying for sale
- Interim charging order: creditor files application notice at court (if debt is more than £5,000, must apply to CC Money Claims Centre or HC)
- Final charging order
- Order of sale: creditor can enforce charge over debtor’s land through fresh proceedings for an order of sale
Enforcement of money judgements: what is a third party debt order and how can this be issued?
Can order a third party that owes money to debtor to pay creditor monies to satisfy judgement debt and costs
- Debt must solely and beneficially belong to debtor
- Creditor applies to court without notice to debtor
- Judge make interim order
- Court considers objections and, unless there are good reasons not to do so, the order will be made final
Enforcement of money judgements: what is the procedure for an attachment of earnings?
- Creditor applies to Civil National Business Centre
- Court informs debtor of application and require them to either:
a) Pay sum due; or
b) File statement of means giving details of their income and outgoings - Court officer will make attachment of earnings order, fixing repayment rate
- Order sent to parties and to debtor’s employer
How can a money judgement be enforced in Scotland and NI?
Creditor must:
1. Obtain certificate confirming date of judgement, sum awarded and details of interest and costs; and
2. Make an application to the court Scotland/NI to register judgement within 6 months
How can a money judgement be enforced in the Commonwealth?
Judgement in CC = 6 years to register
Judgement in HC = 12 months to register
How can a money judgement be enforced in other countries?
2005 Hague Convention country = judgement will be enforced and recognised in that country
Creditor’s ability to enforce English judgement will be determined by the national law of that particular country
What are the form and content requirements of a witness statement?
- In witness’s own words
- Include full name, address (business) and occupation of witness
- Contain a prescribed heading
- Where necessary, supported by exhibits
- Verified by statement of truth (cannot be signed by legal representative)
How and on what grounds can another party be added to proceedings?
Need court’s permission
Ground if application is made within limitation period = ground should be that it is desirable to add party to resolve matters in dispute
Ground if application is made outside of limitation period = claim cannot be properly carried against original party without adding additional party
Fast track claims, standard basis: what are the fixed trial costs of the advocate for appearing and preparing for trial?
Costs of the advocate are fixed by the CPR, with the fixed cost being dependent on the amount of damages awarded
Damages awarded are less than £15,000 = £690
Damages awarded are more than £15,000 = £1,650
What are the formalities surrounding a statement of truth on the claim form?
It may be signed by the solicitor, but they must do so in their own name NOT the name of the firm
If the solicitor signs the statement of truth, they are deemed to have:
- The client’s authority to sign the statement
- The solicitor has told the claimant of the possible legal consequences if the matters are untrue (this is drafted in the statement of truth)
=> No separate declaration is required
When would a Part 20 claim arise?
- Defendant wishes to make a counterclaim as they have their own cause of action against the claimant
- Additional claims are made by the defendant for a contribution, indemnity or some other claim, whether or not they are party to the proceedings
- ‘Other claims’ can be made without the court’s permission, provided this is done either before or at the same time as they file a defence
When must a judgement be paid by?
Within 14 days, unless another date is specified or the court has stayed proceedings
- Merely applying for proceedings to be stayed does not absolve one from having to pay within 14 days
What are the requirements for permission to serve a claim form outside of the jurisdiction?
- Must demonstrate legal grounds for the claim
- The claim has reasonable prospect of success; and
- E&W is the proper place - burden is on the claimant to prove this
a) In the interests of the parties
b) D’s place of business
c) Availability of witnesses in the UK
What is the difference between a Tomlin order and a consent order?
Consent orders:
- Lists the agreed terms of the settlement
- Open to inspection
- Used where the terms of the settlement are straightforward
Tomlin orders:
- Agreed terms are included in a separate schedule
- The terms can be kept confidential
What are the 3 ways of claiming interest for a breach of contract claim?
- Contract may specify the rate of interest
- Late Payment of Commercial Debts (Interest) Act 1998: statutory right to interest on commercial debts that are paid late
- In all other cases, the court have discretion to award interest under:
a) s 35A SCA 1981 for High Court cases; or
b) s 69 CCA 1984 for County Court cases
What sanctions are available to the court for non-compliance with the CPR/overriding objective?
- Can strike out the statements of case if:
a) There are no reasonable grounds for bringing/defending the claim; or
b) Failure to comply with rule, practice direction or court order - Pay additional costs as a penalty
- Reducing or increasing interest
- If a party has not taken a step in proceedings in accordance with a court order, can apply to the court for an unless order
How can a request for further information on a statement of case (Part 18 request) be made?
Applicant must serve a written request on the other party, specifying a reasonable date for a response
The other party must respond to the request in writing and this response must be:
- Served on all the parties
- Filed at court; and
- Verified by a statement of truth
If the request is not responded to, an application can be made directly to the court
What factors were laid down in Denton v White and which application are they relevant to?
Relevant for applications to set aside a default judgement
- Serious and significance of failure to respond to proceedings
- Failed to comply with the CPR time limits and has resulted in a default judgement - Why the defendant failed to respond to proceedings
- All the circumstances of the case
- eg: any prejudice suffered by D if the judgement is not set aside
- Did D act promptly in making the application
Define an interim injunction and the guidelines used by the court to grant one
An interim injunction is used to maintain the current position until trial
It is a discretionary remedy that can be sought if damages prove to be inadequate
Guidelines used by court:
- There is a serious question to be tried
- Whether damages would be an adequate remedy for either side
- Whether the balance of convenience lies in granting or refusing the injunction
- Whether there are any other relevant factors
The applicant must provide a cross-undertaking, where they undertake to the court that they will pay the respondent any damages incurred by reason of the injunction if it transpires that the injunction ought not to be granted
What are the types of interim injunctions that can be granted without notice?
Freezing injunction = refrains a respondent from being able to dispose of their assets outside of the jurisdiction
- Must have a good arguable claim that there is a real risk that the respondent will dispose of assets to try and defeat the enforcement of the judgement
Search order = compels the respondent to allow their premises to be searched
- Must have a strong claim that:
1. The applicant will suffer harm if the order is not made; or
2. The respondent has incriminating evidence in their possession that cannot be obtained by other means
How can a claimant discontinue a claim?
C can file and serve a notice of discontinuance on the other party at any time
If any consent is required to discontinue the claim (eg: the court’s) this should be attached to the notice
Presumption is that C will pay D’s costs, unless the court orders otherwise
What is an unless order?
It is a sanction for not taking steps in proceedings in accordance with a court order
Where a judge orders that, unless the defaulting party complies with a direction within a set time frame, they will order, for example, for the case to be struck out
