Dispute Resolution Flashcards
complete
What are the two main forms of ADR?
- Mediation
- Arbitration
What is the most common form of dispute resolution?
Litigation
Term meaning correspondence as part of negotiations cannot be referred to in court
Without prejudice
Term for formal negotiations where parties try to agree settlement following disclosure
Round-table discussions (or joint settlement meetings)
What can a court do to a party that unreasonably refuses ADR?
Penalise legal costs recoverable
In what case can parties contractually obligated to solve disputes by arbitration not have to use arbitration?
If both parties agree to use another form of dispute resolution
What should the defendant do if the claimant issues a claim form after the limitation period has passed?
Raise the passage of the limitation period as a defence to have the claim struck out
What can the court do during litigation to allow more time for parties to pursue ADR?
Grant a stay (suspend court timetable)
Which form of ADR?
- Without prejudice
- Informal
- Strict rules of evidence do not apply
- Neutral third party has no interest
- Non-binding until a final written agreement has been signed
Mediation
Failure to commence a legal action within the strict time limits set out in the Limitation Act 1980 result in the claim being…
Statute barred
Longstop for latent defects
15 years
Limitation period for claims for breach of contract
6 years
Limitation period for most claims in tort
6 years
Limitation period for claims for personal injury
3 years
Limitation period for fatal accident claims
3 years
Limitation period for claims for defamation
1 year
Limitation period for claims for unfair dismissal
3 months
What are the two ways of deciding when a limitation period begins?
- Accrual - from the occurance of the action, e.g. car accident
- When claimant first gains knowledge - e.g. injuries appear later
What is the date of knowledge?
Point at which claimant had knowledge of all the facts establishing all essential elements of the claim
In clinical injury claims, what occurs when the claimant is aware of the following:
- That the injury was significant
- That it was attributable to negligence, nuisance or breach of duty
- Defendant’s identity
Date of knowledge
What is the limitation period if the injured party dies within three years of the accrual date?
- Three years from the date of death; or
- Three years from the date of knowledge of the deceased’s personal representative
What is the date of accrual in a contract action?
Date the breach occurred
Which takes precedence?
- Make good clause
- Limitation period
Limitation period
The Latent Damage Act 1986 extends limitation periods for negligence claims for latent defects if the defect was not apparent at time of completion.
What are the limitation periods under the Act?
- Six years from the date of accrual of the cause of action; or
- Three years from the earliest date the claimant knew, or ought to have known, material facts necessary to bring an action alleging negligence
(whichever is later)
When does time stop for limitation purposes?
When the claimant delivers the properly completed claim form to the court office with a request to issue together with correct fee
When does time start for limitation purposes following the cause of action?
The day after the day the cause of action arose
When does the limitation clock start to run when claimant is a minor?
On their 18th birthday
When does the limitation clock start to run when claimant lacks capacity at point of accrual?
Until certification that the claimant is of sound mind
Post-litigation, the court will examine the pre-action conduct of the parties, what can failure to comply result in?
Adverse costs consequences for the non-compliant pary
What is the first step set out in the Practice Direction on Pre-Action Conduct and Protocols?
Claimant should write to the defendant with concise details of the claim
How quickly should the defendant respond in the Practice Direction on Pre-Action Conduct and Protocols?
Straightforward v Complex
- Within a reasonable time
14 days in a straightforward case - No more than 3 months in a complex claim
What is required before parties can rely on expert evidence in the Practice Direction on Pre-Action Conduct and Protocols?
Court permission
What are the below examples of
- Template letters
- Guidelines for exchange of information and document disclosure
- Encouragement to instruct a single joint expert
- Consider ADR
- Proposed time limit for investigation and agreeing period before commencing proceedings
Common features of Pre-Action Conduct and Protocols
Which track should personal injury protocol primarily be used in and which type of disputes are excluded?
- Fast track
- Clinical negligence disputes
What is the following included in
- Clear summary of facts
- Details of injuries sustained and impact on claimant’s day-to-day life
- Hospital attended and reference number
- Indication of financial losses
Letter of claim in Personal Injury Protocol
When must the defendant respond to claimant’s letter of claim under Personal Injury Protocol?
21 days
Personal Injury Protocol: What happens if the defendant disagrees with the claimant’s list of suggested experts?
Each party can instruct their own
Personal Injury Protocol: How long does the defendant have to disagree to the claimant’s list of suggested experts?
14 days
Personal Injury Protocol: If the protocol fails to achieve settlement, what should the claimant send to the defendant?
- Medical report
- Schedule of past and future expenses
Personal Injury Protocol:
How long must the claimant wait after protocol fails to achieve settlement before commencing proceedings to allow for an offer (unless limitation is imminent)?
21 days
How can the relevant protocol be dis-applied?
By agreement
Two likely consequences of failure to comply with Protocol
- Sanctions
- Stay in proceedings to allow protocol to be complied with
What sanctions can the court order for non-compliance with protocol?
If claimant/defendant
- Ordering non-compliant party to pay other side’s costs
- If claimant, deprive of or restrict interest on damages
- If defendant, increase interest
Three situations court unlikely to criticise non-compliance with protocol?
- Limitation period is close
- Court order required to protect or preserve evidence or assets
- Where there is concern defendant may issue proceedings in another country
Pre-action applications are not usually required as part of the pre-action protocol process.
Which 2 pre-action applications can be made?
- Pre-Action Disclosure
- Pre-Action Inspection of Property
Which courts issue claims arising out of disputes in England and Wales?
High Court and County Court
Minimum value of claim to be issued (started) in High Court
- £100,000
- £50,000 in personal injury cases
Where can a claim for £100,000 be started?
High Court or County Court
Three reasons to file a claim in High Court
- Value of claim in dispute
- Complex facts, remedies or procedures
- Importance of outcome to public interest
What two actions can the court take if it determines claim has been started in wrong court?
- Exercise powers of management to transfer the claim
- Strike out the claim
How many county courts and county court hearing centres are there?
- One
- 400
Who issues money claims up to £100,000 and where?
County Court Money Claims Centre in Salford, Manchester
Following receipt of a defence or admission, where will the county court hearing centre transfer the claim?
Hearing centre local to defendant’s home address (if indvidual) or claimant’s preferred hearing centre (if business)
What is the High Court known as in and outside London?
- Royal Courts of Justice
- District Registries
Which High Court division typically deals with the following
- Defamation
- Breach of Contract
- Negligence
- Personal injury
- Land possession
- Non-payment of debts
King’s Bench Division
What are two specialty courts within the Business and Property Courts within the King’s Bench Division?
- The Technology and Construction Court
- The Commercial Court
What is the minimum claim value in The Technology and Construction Court?
£250,000
Which High Court division deals with the following
- Equity and trusts
- Commercial fraud
- Tax
- Intellectual property
- Land
- Business disputes
- Contentious probate
- Regulatory work
- Bankruptcy
- Professional negligence
Chancery Division
What are two specialist courts within the Chancery Division?
- Bankruptcy court
- Companies court
What is the following included in
- Names and addresses of parties
- Details of claim
- Remedy claimed
- Value
- Claimant’s preferred court for hearings
- Particulars of claim (can be sent separately)
- Statement of truth
Claim form
Three monetary categories of value of damages
- Less than £10,000
- More than £10,000 (or in a PI case, not more than £10,000 but including PI claim over £1,000)
- More than £25,000
What type of claim does a damages claim always fall under even if damages itemised?
Unspecified claim
Minimum expected damages for cases started in the High Court
- £100,000
- £50,000 for PI cases
What is the court fee for a claim with damages between £10,000 and £200,000
5% of the value of the claim
What is the court fee for a claim with damages above £200,000
£10,000
What does the court send to the claimant after receiving claim form, sealing it, and assigning claim number to the case
Notice of Issue
Type of claims that do not involve substantial dispute of fact
Part 8 claims
What must a Part 8 claim state?
- That Part 8 applies
- The question the court is to decide or remedy sought
- Details of claim
- Capacity of representative (if applicable)
What documents must be and should be included with the claim form?
- Witness evidence
- Particulars of claim
Within what period must the claim form be served on the defendant(s) following date of issue?
- 4 months
- 6 months if outside jurisdiction
How does a defendant respond to the claim form and relevant documents being served on them?
By filling and returning response pack
In the case of a partnership being sued in the firm name, who can be served?
Partner or person who at time of service has control or management of business
When can a claim be served by email?
When express consent has been given
Within what period must the Particulars of Claim be served after the claim form (if not served together)?
14 days
When is the claim form deemed to be served to defendant?
On the second business day after the necessary step (e.g. leaving with individual/partner, posting) has occurred
Where should claim be sent if defendant cannot be found?
Last known address
How would a defendant argue service of proceedings was invalid?
Indicate as such in acknowledgement of service and make an application within 14 days
When is permission to serve claim form not required when defendant lives outside jurisdiction?
If they live in Scotland or Northern Ireland
When must the defendant respond to a claim by after the date of service of the Particulars of Claim?
14 days
Three ways a defendant can respond to service of proceedings
- Admit the claim
- File and serve defence (possibly with counterclaim)
- Acknowledge service and indicate intention to defend claim
What is the maximum extension that can be agreed between parties following date of service of Particulars of Claim?
Further 28 days (56 days total)
If defendant admits claim during the protocol, they will be bound by the admission in claims worth up to…
£25,000
When would a defendant provide details of assets, income and outgoings?
When asking for more time to pay or to pay in instalments
What will the court do following admission of an unspecified claim?
Stay the case and set the case down for a disposal hearing where damages will be determined
What must the court do if an admission to a claim is made by a minor/protected party?
Approve the admission or offer to pay
(Not automatically granted as if ordinary adult admission)
What must a defendant do after filing a partial submission to a claim?
File a defence to the part in dispute
Who must give permission and receive reasons for withdrawal of admission?
The court
When must a defendant file Acknowledgement of Service by, and how long does it extend the deadline to file defence?
- Within 14 days of deemed service of Particulars of Claim
- Extends by 14 days (to 28 days)
Which document can do the following
- Indicate intention to dispute but seek extra time to file defence
- Admit some of the claim but ask for more time to pay
- Dispute jurisdiction of court
Acknowledgement of Service
When is the defence due date calculated from?
Date of deemed service of the claim form or Particulars of Claim
What is likely to happen if defendant’s Acknowledgement disputes court juridiction AND files defence?
Negates the challenge to jurisdiction
Must file Acknowledgement with jurisdiction dispute only and wait for court response
What can the claimant obtain if defendant does not file Acknowledgment of Service or defence in time?
Judgement in default (of trial)
What two things must the defendant prove to the court to set aside default judgement?
- Defendant has real prospect of successfully defending claim
- There is a good reason why judgement should be set aside
How can a claim be concluded
- By the claimant unilaterally
- By the claimant and defendant together
- Discontinuance (claimant files Notice of Discontinuance)
- Settlement
Who must a defendant serve their defence on?
Every other party to the claim
What type of defence is concerned with issues such as lack of jurisdiction or expiration of the limitation period?
Procedural
What are the three ways a defendant can respond to each paragraph in Particulars of Claim?
- Admission
- Denial
- Non-admission
Why would a defendant respond to a Particulars of Claim paragraph with a non-admission?
Not responding is considered admission, responding with non-admission means the claimant must prove the argument in the paragraph
What are the defendant’s options in responding to the claimant’s personal injury claim medical report?
- Agree
- Dispute and state reasons
- State they have no knowledge of the matters contained in the report
Term for defendant admitting the amount of damages claimed but denying liability - claimant recovers damages only if court finds the claim proved
ADSL
Admission of damages subject to liability
Term for defendant claiming that the claimant owes them money and the claim amount should be reduced by the amount owed
Defence of set-off