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FLK 1 > Dispute Resolution > Flashcards

Dispute Resolution Flashcards

1
Q

What are the statements of case documents in civil proceedings?

A
  • the claim form and particulars of claim start the process
  • if contested, a defence is filed.

Sometimes the following will also be required:
- a reply from the claimant
- a counterclaim filed by the defence, then the claimant will need to serve a defence to the counterclaim
- a request for additional information by either of the parties

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2
Q

What must a particulars of claim include?

A
  • a concise statement of the facts on which the claimant relies
  • if seeking interest, a statement to that effect and the details
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3
Q

When does a counterclaim arise?

A

Where the defendant os alleging they have their own cause of action against the claimant. Effectively, they could have taken action against the claimant first and issued proceedings.

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4
Q

Is a counterclaim set out in a new document?

A

It is set out in the same document as the defence, titled ‘Defence and Counterclaim’.

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5
Q

Is permission required to file a counterclaim?

A

No - but if the defence has already been filed, you need permission from the court.

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6
Q

How can one amend their statements of case?

A

(Within limitation period)

After filing but before service - amendments can be made at any time.

After filing and service - amendments made only with (a) written consent of all parties; or (b) permission of the court.

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7
Q

Can amendments be made to statements of case after limitation period has ended?

A

Yes, but only in the following circumstances:

(a) to add or substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim;
(b) to correct a (genuine) mistake as to the name of a party;
(c) to alter the capacity in which a party claims.

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8
Q

When must an interim application be served on the opponent?

A

At least three clear days before the court hearing - ON NOTICE

Clear days means the date of service and of the hearing are excluded, as well as weekends and bank holidays.

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9
Q

Can interim applications be served without notice.

A

Not really.

However, exceptions are:
- there is exceptional urgency; or
- the overriding objective of the CPR would be best achieved by making an order without notice.

Service on the opponent must be as soon as practicable after the order is issued.

The respondent may apply to set aside or vary the order within 7 days of it being granted.

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10
Q

What is a summary judgement?

A

It is a way of bringing a matter to an early conclusion.

E.g. if the defence submitted is really poor, a judgement can be made which saves the claimant the cost of going to trial.

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11
Q

When may a court give a summary judgement?

A

If it considers that:
- the claimant has no real prospect of succeeding on the claim; or
- the defendant has no real prospect of successfully defending the claim

AND

there is no other compelling reason why the case should be disposed of at trial.

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12
Q

When can a summary judgement be applied for? Is permission needed?

A

By either party at any time.

Permission needed only where the claimant wishes to apply before the defendant has filed an acknowledgement of service or a defence.

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13
Q

Who can apply for an interim injunction? And when?

A

Either party.

At any time after proceedings have been commenced and in exceptional cases beforehand.

Interim injunctions remain in force until the matter comes to trial (or until further order) at which point the court will decide whether or not to make a final injunction.

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14
Q

What is an injunction?

A

Injunctions may be distinguished from other court orders because breach is punishable as a contempt of court.

Discretionary remedy. Only granted when damages are not an adequate remedy.

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15
Q

What’s the cross-undertaking of an interim injunction?

A

The applicant must undertake to the court to pay any damages that the respondent (or any other party affected by the order) sustains by reason of the injunction, if it subsequently transpires that the injunction ought not to have been granted.

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16
Q

How can an injunction without notice take form?

A
  • the court may fix a date for a further hearing with all parties present, in which case it lasts until the date specified for that hearing.
  • or an injunction without notice may tell the defendant that they may apply on notice for the order to be varied or set aside.
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17
Q

What is a freezing injunction?

A

These restrain a party from removing their assets from the jurisdiction. If notice was given, the defendant could do this prior - so without notice needed.

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18
Q

What is an interim payment?

A

An advance payment on account of any damages, debt or other sum (excluding costs) that a defendant may be held liable to play.

Application should only be made if a voluntary interim payment is not offered by the defendant.

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19
Q

When can a claimant seek an interim payment?

A

Only after the time for acknowledging service has expired. More than one application during proceedings is allowed.

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20
Q

When must an application for interim payment be served?

A

At least 14 days before teh hearing date.

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21
Q

What are the grounds for an interim payment?

A

Where:
- the defendant has admitted liability
- the claimant has obtained judgement against the defendant for damages to be assessed or for a sum of money; or
- the court is satisfied that, if the case went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs).

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22
Q

Does interim payment have an effect on the trial?

A

The trial judge will not be told about any interim payment order or voluntary payment until after they have determined all issues of liability and quantum, unless the defendant consents.

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23
Q

What is contained in the directions questionnaire and what is the name of the form?

A

Form N181

a) Settlement

b) Court

c) Pre-action protocols

d) Case management information

e) Experts

f) Witnesses

g) Trial

h) Costs

i) Other information

j) DIrection

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24
Q

What happens if a party fails to file the directions questionnaire?

A
  • If the claim is for money in the County Court, the court will serve a notice on the defaulting party requiring compliance within seven days. Failure to do so results in the party’s statement of case being automatically struck out.
  • In all other cases, the court will make such order as it considers appropriate. This may include an order for directions, to strike out a statement of case or to list the matter for a case management conference.
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25
Q

What are small claims?

A

Claims with a financial value of £10,000 or less.

In road traffic cases occurring after 31 May 2021, the value of the damages claimed for the pain, suffering and loss of amenity aspect must not exceed £5,000.

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26
Q

What parts of the CPR do not apply to the small claims track?

A

Disclosure and inspection

Provisions relating to evidence and experts

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27
Q

What cases go to the fast track?

A

Claims falling on or between the relevant financial bands of £10,000.01 and £25,000.

However, the court must think about the length of the trial. Cases where the trial is expected to last longer a day are not suitable for fast track.

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28
Q

What is the typical timetable for a case on the fast track?

A

Disclosure - 4 weeks

Exchange of witness statements - 10 weeks

Exchange of experts’ reports - 14 weeks

Court sends pre-trail checklists - 20 weeks

Parties file pre-trial checklists - 22 weeks

Hearing - 30 weeks

Running from the date of allocation.

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29
Q

What are the differences between the fast-track and multi-track approach?

A

a) Directions are standard, so not tailored to the individual case.

b) Expert evidence is more limited. The court will usually order a single joint expert, unless there is a good reason to appoint separate experts, and will rely upon their written report at trial rather than allowing the expert to give oral evidence.

c) The trial is expected to last no longer than a day.

d) The power to award costs is more limited and the judge will generally assess these summarily (instantly) at the end of the trial.

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30
Q

What does a CMC do for multi-track cases?

A

a) review the steps the parties have already taken to prepare the case

b) check their compliance with any directions the court has made

c) consider and give directions about future steps to ensure the claim proceeds in accordance with the overriding objective

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31
Q

What happens if a party misses a step on the directions timetable?

A

Any other party may apply for an order enforcing and/or for a sanction to be imposed.

Furthermore, to comply with the overriding objective, the trial date is sacrosanct and the court will not allow failure to comply with directions to lead to the postponement of the trial, unless the circumstances are exceptional.

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32
Q

What does the costs budget include?

A
  • a detailed breakdown of the costs and disbursements already incurred
  • an estimate of future costs and the assumptions on which those are based for the future phases of the proceedings

A budget must be dated and verified by a statement of truth signed by a senior legal representative of the party.

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33
Q

When must cost budgets be filed?

A
  • with the directions questionnaire for claims of less than £50,000
  • no later than 21 days before the first CMC for all other claims

Having done so, the parties must complete a budget discussion report no later than seven days before the first CMC.

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34
Q

What happens if a party fails to file its cost budget on time?

A

Unless the court orders otherwise, the party will be treated as having filed a costs budget consisting only of the court fees.

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35
Q

What are the effects of a costs management order?

A

The court will thereafter control the parties’ budgets in respect of recoverable costs.

36
Q

What are the effects of no costs management order?

A

There will be more flexibility.

Where there is a difference of 20% or more between the costs claimed by the receiving party and the costs as set out in the budget, the receiving party must provide a statement of the reasons for the difference. It is then for the court to decide whether the additional amounts can be recovered.

37
Q

When can the court strike out a party’s case?

A

The two most common scenarios are where:

  • the statement of case discloses no reasonable grounds for bringing or defending the claim; and
  • there has been a failure to comply with a rule, practice direction or court order.
38
Q

How is disclosure defined in Part 31 of CPR?

A

A party discloses a document by stating that it exists or has existed.

39
Q

What is the direction for disclosure on the small claims track?

A

Each party shall, at least 14 days before the date of the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which they intend to rely at that hearing.

40
Q

What is the direction for disclosure on the fast track?

A

On the fast track, an order for standard disclosure will invariably be made.

41
Q

What is the direction for disclosure on the multi-track?

A

Although standard disclosure is usually ordered, the court may tailor the order to the requirements of the particular case.

This more involved process takes place as follows:
- the parties compile a disclosure report to be filed and served not less than 14 days before the first CMC
- not less than seven days before the first CMC the parties must discuss and seek to agree to a proposal for disclosure that meets the overriding objective. any agreed proposal must be filed at court.
- the court can make an order for standard disclosure or any other order that the court considers appropriate.

42
Q

What is standard disclosure?

A

CPR, r 31.6

a) the documents on which they rely; and

b) the documents which:
- adversely affect their own case;
- adversely affect another party’s case; or
- support another party’s case.

43
Q

What documents can a party disclose?

A

Only documents in the party’s control. This means documents that:
a) either are or were in their physical possession;
b) they have a right to possess; or
c) they have a right to inspect.

44
Q

What is the duty to search for documents?

A

A party is required to make a reasonable and proportionate search for all documents that:
a) adversely affect their own case;
b) adversely affect another party’s case; or
c) support another party’s case.

45
Q

How is disclosure made?

A

By way of a list and this achieved by completion of Form N265.

The contents of the list is as follows:

a) Formalities

b) Disclosure statement (cannot be signed by a legal representative on behalf of the client)

c) the list
- part 1: documents within the party’s control and which they do not object to the other party inspecting
- part 2: documents within the party’s control but where there is an objection to inspection, usually because they are privileged
- part 3: documents which are not privileged but are no longer in the party’s control

46
Q

Who can waive privilege?

A

The client. Not the lawyer.

47
Q

What are the advantages of mediation?

A
  • Cost and speed
  • Flexibility
  • Privacy
  • Preserving a business relationship
  • Commercial reality
  • Ability to withdraw
48
Q

What are the disadvantages of mediation?

A
  • Disclosure
  • Privacy
  • Ability to withdraw
49
Q

Are decisions made in mediation binding?

A

Even if an agreement is reached, it is not automatically binding as the client cannot enforce this like a court judgement.

However, if the parties do agree to terms suggested as a result of mediation, they have entered into a contract. If one of the parties does not carry out that contract, they may be sued for breach.

50
Q

Is there a legal authority to arbitration?

A

Largely governed by the Arbitration Act 1996.

However, this only applies if the agreement to arbitrate is in writing.

51
Q

What are the advantages to arbitration?

A
  • Quicker than court
  • Less formal
  • Impartial third party with expertise making the decision
  • Privacy
  • Solutions are often more practical than court
  • Binding decision
52
Q

What are the disadvantages to arbitration?

A
  • Dispute may not receive the depth of investigation it would receive in the courts
  • Certain remedies such as injunctions are not available
  • Not really cheap as arbitrator needs to be paid
  • Decision is binding with very limited rights of appeal
53
Q

How can an arbitration decision be enforced?

A

The winning party to an arbitration can apply to the High Court under s66 of the Arbitration Act 1996 for permission to enforce the arbitration award as if it were a court judgement.

54
Q

What are the limitation periods?

A

Basic rule: claimant has six years from the date of the cause of action to commence their proceedings and time runs from this point. But, date on which the cause of action accrues is excluded from the calculation.

Limitation for personal injury is three years. Runs from date of cause of action or the date of knowledge of the person injured, except for children where the time limit does not start to run until their 18th birthday.

However, no later than 15 years after the date of the negligent act or omission.

55
Q

Can limitation period be extended?

A

Only in exceptional circumstances.

56
Q

What are the purpose of damages in different types of dispute?

A

Contract - back in position if it had been properly performed

Tort (negligence) - back in position if act had not occurred

Tort (nuisance) - back in position if nuisance had not occurred

Misrepresentation - put claimant in position before contract was entered into

57
Q

What actions must happen pre-action?

A
  1. Claimant sends letter setting out claim
  2. Defendant sends letter of response (including if a counterclaim)
  3. Claimant replies and the parties consider negotiation, ADR and appointment of expert(s)
  4. Stocktake
  5. Sanctions for non-compliance
58
Q

Where can proceedings be commenced?

A

Hague Convention - exclusive jurisdiction agreement, proceedings anywhere else must be dismissed.

Common law - if Hague doesn’t apply. Jurisdiction may be established by serving the defendant within the jurisdiction. However, court may still decline jurisdiction. If defendant outside jurisdiction, permission of court must be obtained.

59
Q

Which court will proceedings be started in?

A

Sometimes you can choose. But:

  • if the value of the claim is £100,000 or less, it must be started in the County Court.
  • if the value of the case exceeds £100,000, it may be commenced in the High Court.

Personal injuries - cannot be in High Court unless value of claim is £50,000 or more.

60
Q

How do you fill out the statement of value on a claims form?

A

a) Specified Claim - precise figure including interest accrued

b) Unspecified Claim - High court just say more than 100k/50k. In county court, must say less than 10k, between 10 and 25k or more than 25k. Don’t include interests, contributory negligence or counterclaims.

61
Q

When must the claim form be served?

A

On other parties within four months are issue.

62
Q

When is deemed service of the claim form?

A

On the second business day after the step required has occurred.

63
Q

When are other documents (not the claim form) deemed to be served?

A

Everything but first class post or DX:
- if served before 4:30 on a business day, that day
- if not, next business day

First class post or DX:
- second day after it was posted provided that day is a business day
- if not, on the next business day

64
Q

When does service have to happen if the claim form is to be served outside E&W jurisdiction?

A

Instead of four months, must be served within six months of being issue.

65
Q

When must particulars of claim be served?

A
  • Either at the same time as the claim form; or
  • within 14 days after service of the claim form (but no later than four months after the date of issue of the claim form).
66
Q

What is the general rule as to the legal burden of proof?

A

The legal burden of proof lies with the claimant and each fact must be proved unless it is admitted by the opponent.

67
Q

What is the legal burden of proof reversed in proceedings?

A

Where the defendant has been convicted of a relevant criminal offence.

Also, contributory negligence.

68
Q

What is the standard of proof in civil cases?

A

Balance of probabilities.

69
Q

What happens if a party wishes to call a witness?

A

They must serve a witness statement on the other parties setting out all the facts which that witness would be allowed to give orally at trial.

If the statement is not served for any reason, the witness will only be allowed to speak at trial with the court’s permission and this would be a rare occurrence.

70
Q

What happens if it is proving very difficult to get a witness statement?

A

The party can apply to the court without notice for an order to serve a written witness summary.

This will contain:
- name and address
- evidence that the witness can provide; if not
- the matters on which the witness would be questioned at trial, namely, the relevant disputed issues.

71
Q

What happens if the witness statement cannot be given in English?

A

The statement should be drafted in the witness’s own language with the date and the details of the details of the translation being included in the statement.

72
Q

When is evidence relevant?

A

When it addresses relevant facts, namely those which are in dispute and which have to be proved by the party calling the witness.

73
Q

When may opinion evidence be admissible?

A
  • If made as a way of conveying relevant facts personally perceived by them.
  • Experts are permitted to express their opinions in court.
74
Q

What are the notice requirements for admitting hearsay evidence at trial?

A
  • If the party intends to call the witness whose statement contains hearsay evidence, they simply need to serve the other party with the statement
  • the opponent must then decide whether to ask the court to order that the maker of the original statement attends for cross-examination or serve notice of intention to attack the credibility of the hearsay evidence
  • if the party does not propose to call the witness to give oral evidence but instead intends to rely upon the witness statement itself, the whole statement becomes hearsay. this obviously limits the opponent’s options as they cannot cross-examine the witness and so they must be given in advance warning of the situation
75
Q

What is the procedure where separate experts are ordered?

A
  • Exchange: a deadline will be imposed for exchange of the experts’ reports.
  • Questions: each party may, within 28 days, put written questions to the expert for clarification of their report. The expert’s answers are treated as part of the report.
  • Discussion: the court may order a without prejudice discussion between the experts, usually in the absence of the parties or their legal representatives, and their contents will not be referred to at trial unless the parties agree. the purpose of the discussion is not to settle the case but to narrow down the issues and to identify:
    (a) the extent of any agreement between them
    (b) the points of and short reasons for any disagreement
    (c) what action, if any, may be taken to resolve these; and
    (d) any further material issues not yet raised and the extent to which these are agreed
  • written joint statement: following the discussion, a written joint statement must be prepared for the court and signed by the experts stating the issues on which they agree and those on which they disagree with a summary of the reasons. copies should be provided to the parties.
  • oral evidence: the judge will decide whether the expert may give oral evidence at trial. although there is a presumption that the court will rely upon written reports, it is common on the multi-track for experts to be called to give evidence.
76
Q

When should a witness summons be served?

A

At least 7 days before the date on which the witness is required to attend court.

77
Q

What is the procedure for a witness summons?

A

Normally served by court and to be effective, the witness must be offered or paid:

  • a sum reasonably sufficient to cover their expenses in travelling to and from the court
  • compensation for loss of time as specified in Part 34
78
Q

What are pre-trial checklists?

A

On fast and multi-track

  • must be filed at court no later than 8 weeks before the trial date
  • judge will review and decide if further directions are needed
  • if neither party comply, the court will order that unless a completed checklist is filed within 7 days, the claim, defence and counterclaim will be struck out, if only one party does, the court will fix a hearing to ensure the case is ready for the trial.
79
Q

How are bundles dealt with in practice?

A
  • prepared by claimant/lawyer, but contents should be agreed wherever possible
  • bundle must be filed between 7 and 3 days before start of trial
  • bundle shoudl include
    claim form, statements of case, case sumary, witness statements etc.
    Not Part 36 claims
80
Q

What differs in a multi-track case re bundles?

A

each party should prepare a case summary for use at trial.

81
Q

How can one appeal?

A

No right to appeal and procedure for obtaining permission governed by CPR Part 52.

  • usually, request made at end of trial and judge will decide whether to grant permission.
  • if request unsuccessful, or none made, party can apply for permission from appeal court itself. usually will be dealt with on paper.
82
Q

What is the timing of an appeal?

A

Aggrieved party has 21 days to appeal against County or High Court decision, 28 days to apply for leave to appeal from CA to SC.

83
Q

How are costs determined on the other tracks?

A

small claims - legal costs are not recoverable so costs payable will only relate to disbursements

fast track - costs will usually be summarily assessed

multi-track - detailed assessment of the costs will be carried out

84
Q

What are the conditions for a Part 25 order to apply?

A
  • the claimant is resident outside a 2005 Hague Convention State
  • Claimant is an impecunious company
  • claimant has taken steps to make enforcement difficult
85
Q
A

FLK 1 (7 decks)

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