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Dispute Resolution > Dispute Resolution > Flashcards

Dispute Resolution Flashcards

1
Q

Main Civil Courts

A

County Court, High Court (Tribunal and Appeal Tribunals), Court of Appeal and Supreme Court

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2
Q

County Court claims

A

Personal injury claim worth less than £50,000 or non personal injury claim worth up to £100,000

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3
Q

High Court claims

A

Over £100,000 or £50,000 claims can be in either court. Financial value of the claim (disregard interest, costs, counterclaim, contributory negligence and deduction of social security benefits), complexity of facts/legal issues/remedies/procedures or the importance to the public

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4
Q

High Court: Chancery Division

A

Insolvency and Companies list, Revenue List, Competition List, Business List, Property, Trusts and Probate List, Intellectual Property List

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5
Q

High Court: King’s Bench Division

A

General KBD List, Administrative Court, Planning Court, Commercial Court, Circuit Commercial Courts, Technology and Construction Court, Admiralty Court, Financial List (part of both KBD and Chancery Division and hears financial disputes of £50million or more in value)

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6
Q

Judges Hierarchy

A

County Court (Deputy District Judges, District Judges, Recorders or Circuit Judges), High Court (High Court Judges and High Court Masters), Court of Appeal (Judges of the Court of Appeal), Supreme Court (Justices of the Supreme Court)

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7
Q

Solicitors

A

Can only carry out advocacy in the Magistrate’s Court, County Court, Tribunals and Appeal Tribunals

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8
Q

Judicial Leaders

A

Lord Chief Justice (most important), Master of the Rolls (second most important), President of the Family and King’s Bench Division, Chancellor of the High Court

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9
Q

Overriding objective

A

Court to deal with cases justly and at proportionate cost (parties at equal footing, saving expense, proportionate dealings to the amount of money involved, importance of the case, complexity of the issues and financial position of each party), ensuring case is dealt with expeditiously and fairly, alloting to each case an appropriate share of the court’s resources, enforcing compliance with rules, practice directions and orders

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10
Q

Case analysis: Duty, breach, causation, loss, parties and limitation

A

Contract/tortious duty, breach of contract or tortious duty or both, did the breach of duty cause the claimant a loss, was it foreseeable (not too remote), what is the amount of the loss, who are the parties, who should the claimant bring its claim against, one or more parties, issues of limitation?

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11
Q

Burden of proof

A

Falls on the party who asserts it, the claimant must prove: duty, breach, causation and loss for negligence, duty(existence and terms of contract), breach, causation and loss for contract, the defendant must prove: contributory negligence (if any), why the defendant’s version of the facts is correct and hence the claimant’s version must be wrong

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12
Q

Standard of proof

A

Balance of probabilities, formal admissions, presumptions (the facts speak for themselves), inferences of fact

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13
Q

Costs

A

Solicitor’s fees, disbursements, court fees, counsel’s fees, expert’s fees, other costs(photocopying, travel costs, search fees)

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14
Q

Power

A

Court has a broad discretion to determine whether one party should pay the other’s costs or if each party will simply pay its own costs and how much should be paid

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15
Q

General Rule

A

Unsuccessful party will be ordered to pay the costs of the successful party and will normally follow the event

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16
Q

Discretion

A

Court can make a different order and will consider the conduct of the parties and whether a party has succeeded on all of its case or only part and the parties’ conduct (relation to ADR/offers to settle)

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17
Q

Example

A

When one party unreasonably refuses to engage in ADR the burden is on the unsuccessful party to show why there should be a departure from the general rule for this particular reason

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18
Q

Limit on recovery

A

If the court does determine that one party will pay another party’s costs, it will decide how much and when it should be paid and as a general rule will only allow a reasonable and proportionate sum to be recovered

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19
Q

Solicitor-client costs

A

indemnity principle provides that a party will not be able to recover a sum in excess of their liability to their own solicitor

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20
Q

inter-party costs

A

Actual figure for costs awarded by court which one party has to pay the other party

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21
Q

Non-party costs

A

court has jurisdiction to award costs against a non-party if it is just and are usually exceptional

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22
Q

Pre-Action Protocols

A

Consider whether another form of ADR might allow them to avoid proceedings, silence in response to an opponent’s suggestion of ADR can itself be deemed unreasonable conduct

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23
Q

Consequences of non-compliance

A

Increasing the amount of costs/interest to be paid while decreasing the amount to be received and court may stay the proceedings until compliance has occurred

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24
Q

Justified instances of non-compliance

A

Where a limitation period is about to expire it may be necessary to issue proceedings before there is time to comply with the pre-action requirements and ordinarily will need to apply for a stay of proceedings after issue in order that the pre-action procedure can be followed

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25
Q

Justified instances of non-compliance

A

Where there is another reason for urgent proceedings or for the element of surprise eg when a party can apply to court for a search order which allows an unannounced visit to the opponent’s premises to search for documents when it is feared that the opponent will destroy documents rather than honour an obligation to provide them to the claimant/court

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26
Q

Pre-action protocol for personal injury claims

A

Likely to be allocated to the fast track (value of up to £25,000)

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27
Q

Practice Direction

A

Applies to all cases but where a specific protocol applies, the provisions of that specific protocol override any conflicting provisions of the Practice Direction

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28
Q

Pre-action Protocol for Personal Injury Claims

A

Claimant should write letter of notification to potential defendant giving brief details, to enable defendant to notify its insurer, parties consider any rehabilitation needs (ongoing medical and care needs) and how to address them, claimant should write to defendant to give full details of the claim (Letter of Claim), defendant to acknowledge Letter of Claim within 21 days, defendant to investigate and send full letter of response within 3 months of letter acknowledging claim, if the defendant denies liability or quantum (or both) then the parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement, claimant should send schedule of losses giving details of losses, joint selection of quantum expert (medical expert) or claimant discloses report and defendant sends written questions

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29
Q

Practice Direction

A

Claimant should write to potential defendant to give details of the claim (Letter of Claim), within a reasonable period (depending on complexity of claim), defendant should send a response letter which must either accept or reject the claim (in whole or in part) - giving reasons, parties should disclose key documents, engage in appropriate negotiations and make proposals for the settlement

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30
Q

Limitation Act 1980

A

If proceedings are not commenced within the relevant limitation period, the claimant will be barred from recovering damages and on this basis, the defendant will have a full defence

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31
Q

Personal Injury Claims

A

Claimant must bring the claim within 3 years of the lates of: the date when the cause of action accrued or the date of knowledge of the person injured

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32
Q

Fatal accidents

A

People who were dependent on the employee (children) can claim compensation from the employer, the claim cannot be brought if the person injured could no longer bring a claim (after 3 years from the later of date of death, the date of knowledge of the dependent)

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33
Q

Date of knowledge

A

Knowing that the injury was significant, that it was attributable (at least in part) to the alleged wrongdoing, the identity of the defendant and if it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person and the additional facts supporting bringing the claim against the defendant, include knowledge which the claimant might reasonably have been expected to acquire from an expert/facts observable/ascertainable by them

34
Q

Contribution claims

A

Claimant can claim in breach of contract against the shop and manufacturer of the product under s1 of the Civil Liability (Contribution) Act 1978 under a 2 year limitation date from teh date when the judgment was given imposing liability on the first party (the retailer, in our example); in cases where the first party agreed to make the payment (rather than having a judgment imposed on them), the date on which the amount to be paid was first agreed

35
Q

Latent Damage

A

In negligence claims the limitation period is extended to the later of six years from when the cause of action accrued or three years from when he had the requisite knowledge; and right to bring a claim but is subject to a long stop limitation date of 15 years from the date of the latest negligent act/omission which caused all or part of the damage

36
Q

Judgement

A

Action to enforce a judgment cannot be brought after 6 years from when the judgment became enforceable nor can interest be recovered after that period

37
Q

Tort and contract claims

A

6 years after the date on which the cause of the action accrued

38
Q

Disability

A

2 years in relation to contribution claims, 3 years in relation to personal injury or fatal accident claims and 6 years in most other cases; a person is under a disability whilst they are a minor or lacks mental capacity to conduct the proceedings

39
Q

Fraud/concealment/mistake

A

Limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it)

40
Q

Negotiation

A

Communication process between parties that is intended to reach a compromise or agreement to the satisfaction of both parties

41
Q

Mediation

A

Confidential process intended to facilitate the resolution of disputes through the medium of an impartial third party - non-binding

42
Q

Arbritration

A

Impartial adjudicator final and binding decisions advantages include privacy, easier enforcement in certain jurisdictions, ability to choose a specialist to determine the dispute and the additional flexibility of arbitration which can be adapted to suit the needs fo the parties and the dispute

43
Q

Med-arb

A

Parties initially agree they will try to resolve any dispute by mediation and move on to arbitration as a last resort

44
Q

Early neutral evaluation/expert appraisal/expert evaluation

A

Independent party appointed by the parties to provide a non-binding assessment of the matter(s) referred to it, parties will have to pay them for their time and costs

45
Q

ADR advantages

A

Court expectations, better relationships, less expensive, saves time, less disruption, privacy/confidentiality, range of outcomes, outcomes reflect risk, parties in control, parties move involved

46
Q

Expert determination

A

Independent expert on the subject matter suitable for disputes requiring a technical knowledge

47
Q

Conciliation

A

Independent neutral third party in helping parties to resolve their dispute

48
Q

Standard basis

A

Proportionately and reasonably incurred, proportionate and reasonable in amount, not uncommon for only 60% of costs to be recovered from the paying party

49
Q

Indemnity basis

A

Reasonably incurred, reasonable in amount, not uncommon that the receiving party will receive 70-80% of its legal costs from the paying party

50
Q

Proportionate

A

Sums in issue in the proceedings, value of any non-monetary relief in issue in the proceedings, complexity of the litigation, any additional work generated by the conduct of the paying party and wider factors involved in the proceedings, eg. reputation or public importance, receiving party’s last approved or agreed budget

51
Q

Time for complying with an order for costs

A

Within 14 days of the date of the judgment or order if it states the amount of costs, if the amount or part of those costs is decided later the date of the certificate which states the amount or any other date as the court may specify

52
Q

Fixed costs

A

Uncontested disputes, enforcement proceedings and small claims, only applies unless the court orders otherwise

53
Q

Assessed costs

A

Only occurs when parties are unable to agree the amount of costs one should pay to the other

54
Q

Summary assessment

A

Court determines the amount payable by way of costs immediately at the end of a hearing, parties must prepare statements of costs preferably on the standard form N260 and file and serve them on each party not less than 24 hours before the time fixed for a hearing. Unless there is good reason not to do so the court should use this summary assessment procedure: in fast track cases at the end of the trial (the costs of the whole case will be assessed) and at the end of a hearing of an interim application or matter which has not lasted more than a day (usually only the costs of the interim application will be assessed)

55
Q

Detailed assessment

A

Court orders and make no attempt to set a figure, receiving party serves a notice of commencement and a copy of its bill of costs on the paying party, points of dispute in relation to any item in the bill of costs should then be served on the receiving party by the paying party within 21 days of service of the notice of commencement, if an agreement cannot be reached, the receiving party should then file a request for a detailed assessment hearing at which a costs officer will determine the sum to be paid

56
Q

Costs in any event

A

Judge finds in favour of the defendant and grants the full extension requested and is sympathetic with the reasons for bringing the application regardless of who eventually wins at trial

57
Q

Costs in the case

A

Party who eventually gets its costs at trial (usually the winner) will recover its costs of the interim hearing from the other party

58
Q

Costs reserved

A

Decisions about who pays the costs of the interim hearing is put off to a later occasion

59
Q

Claimant or defendant’s costs in the case

A

If claimant is successful and receives an order that it should be entitled to its costs at the end of trial, it can include the costs of the interim application, if the defendant is awarded costs at trial, the claimant does not have to pay the defendant’s costs of the interim application and vice versa

60
Q

Costs thrown away

A

If a judgment or order is set aside, the party in whose favour this costs order is made is entitled to the costs incurred as a result of the judgment or order being set aside (potentially includes the hearing- preparation and attendance) at which the original order is made and the hearing at which the order is set aside

61
Q

Costs of and caused by

A

Party must pay the costs resulting from something that party has done eg. costs incurred by the defendant resulting from a claimant amending its particulars of claim

62
Q

Costs here and below

A

Party in whose favour the costs order is made is entitled to that party’s costs in respect of the proceedings in which the court makes the order but also to that party’s costs of the proceedings in any lower court. Exception of appeal from a Divisional Court where the party is not entitled to any costs incurred in any court below the Divisional Court

63
Q

No order for costs

A

Each party will bear its own costs of this hearing, neither is entitled to recover costs from either party

64
Q

Partnership claims

A

Two or more people who were partners (claiming to be entitled as partners or alleged to be partners) and carried on the partnership business at the time when the cause of action accrued, partnership name or if dissolved before proceedings claim is made against the former partners

65
Q

Sole trader claims

A

Both individual and trading name will be used

66
Q

LLP Claims

A

Legal entity distinct from its members, claim will be brought against the full registered name

67
Q

Claims can be brought against

A

Trustees, executors, administrators (not beneficiaries or estate but will be binding unless court orders otherwise), deceased persons, children and protected parties can be represented by a litigation friend (fairly and competently conduct proceedings, no adverse interest)

68
Q

Transfer between courts

A

Court may transfer case and order the claimant to pay the costs of the transfer, the penalty for wrongly beginning a matter in the High Court instead of the County Court is a deduction of up to 25% of any costs awarded in the claim but at the court’s discretion

69
Q

Issuing the claim at court

A

Copies of the claim form (Form N1) to be issued and sealed, one copy of the completed claim form to be kept on the court file, one copy for every defendant and one copy for the claimant to keep on its own file, court issue fee, date of issue of the claim form is important as it stops time running for limitation purposes and starts the clock for the time in which the claim form must be served, may be appropriate to start proceedings in the County Court Money Claims Centre (for money claims), via Money Claim Online (for money claims up to £100,000 against two or fewer defendants), in the County Court Business Centre (for the bulk issue of claims by registered users) or otherwise at a Hearing Centre

70
Q

Claim form

A

if the court serves it will be by first class post, if the court is unable to serve the claim for for any reason the claimant will be sent a notice of non service and must try to serve the claim form on the defendant, if the claimant/claimant’s solicitor serves it the court will give them the issued claim form with sealed copies for service on the defendant(s) and they must file a certificate of service at court within 21 days of service, if the defendants have filed an acknowledgement of service within that time it is not necessary to file a certificate of service

71
Q

Methods of serving claim form

A

personal service (physically leaving the claim form with a defendant who is an individual, company, or legal entity), leaving the document at a permitted address, serving by first class post or DX, service by fax or email only if the defendant or its solicitor has indicated so

72
Q

Time limit

A

Claim forms must be completed before midnight on the calendar day four months after the date of issue of the claim form otherwise it will fail automatically and the process must be restarted

73
Q

Extension of time

A

Apply to court within the four month period of validity of the claim form and must give good reasons for the extension (rules are very strict) only granted if it is the court that failed to serve the claim form or the claimant has taken all reasonable steps to comply and either way the application has been made promptly

74
Q

Serving the particulars of claim

A

Form N9 contains form for admission, form for defending and form for acknowledging service, if POC are not contained in or served with the claim form they must be served within 14 days of service of the claim form and within 4 months of issue, once POC is served the claimant must file a copy at court within 7 days of service, unless they have already been filed

75
Q

Deemed dates of service

A

Claim form is deemed served on the second business day after completion of the “relevant step”, business day excludes weekends, bank holidays, Good Friday/Christmas Day

76
Q

Instant methods

A

Personal service, fax, email, delivering/leaving at a permitted address (if done before 4.30pm on a business day deemed served the same day otherwise deemed served the next business day)
Non instant methods (Post/DX) deemed second day after posting or giving to DX provider if a business day otherwise deemed served the next business day

77
Q

Acknowledgement of service

A

Unable to file defence in time and needs longer than 14 days from the deemed date of service of the particulars of claim or 14 days after service of the claim form to serve a defence or if it wishes to dispute that the court has jurisdiction to hear the claim

78
Q

How to acknowledge service

A

Form N9, filing an acknowledgement of service extends the time for filing the defence to 28 days from the deemed date of service of the particulars of claim

79
Q
A
80
Q
A

Dispute Resolution (3 decks)

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