Dispute Resolution Flashcards
When does the limitation period run from and to?
Runs day after cause of action ends to the date
What is the effect of a limitation period?
Technical defence - can still bring claim
When does limitation run from for Tort / contract?
Contract - breach. Tort - when tort committed, for neggy will be when damage occurs. 6 years for both but 3 years for PI (from CoA or date of knowledge). If u18, runs from 18 bday
Negligent - damage hidden? 6 years from CoA, or 3 years knowledge of damage, but long stop date of 15 years from date of negligent act or omission
Can the limitation period be changed?
Can be shortened in contract. Extended in very rare cases - think of the sexual assault offender who won £7mil, court extended lim period
What is a protected party?
Can’t manage own affairs due to mental disorder - mental capacity act 05
What are the safeguards for children and protected parties ?
Settlement has to be approved by the court
If q claim is specified and unspecified sums, what will it be overall?
Unspec
Legal definition of a misrepresentation, and the purpose of damages?
Misleading statement of fact that induces someone to enter contract. Puts claimant back in position it would have been in prior to entering contract.
What pre-action protocol is used of mine exists ?
Practice Direction on Pre-Action Conduct and Protocols
Purpose of PAP
Initiate and increase pre action contract, encourage better and earlier exchange of info between the parties, more likely to settle case fairly and early without litigation
Principles all PAPs have in common?
Narrow issues; exchange sufficient info to allow each side to understand case, settle without proceedings, consider ADR, reduce costs; reasonable and proportionate steps only
PDPAC steps
- c write letter with concise details of claim
- Simple claim? Response in 14 days. Complex? 3 months. Inc details of counterclaim. Key docs should be disclosed
Consequences of not complying with PDPAC or any PAP?
- Penalised on costs - maybe indemnity?
- Depriving C of interests (some or all) on damages;
- D to pay Interest on damages, up to 10% per annum above base rate.
Who does PAP Debr Claims apply to
Business / sole trader to individual. Not B2B
Whose countries jurisdiction applies?
First, look at contract.
Hague convention (EU states are members - UK is too). Exclusive jurisdiction clause? Then clause limits dispute to the courts of one jurisdiction. Need the clause.
No HC? Common law rules - serve D in the jurisdiction I.e enabland and wales . If they are outside jurisdiction then need court permission. Service of court papers themselves establishes the court’s jurisdiction.
D could object in grounds English courts not most appropriate
When will court give permission to serve outside jurisdiction?
- Contract made or breached in England or wales, is governed by English law or contains English jurisdiction clause; or
- Tort - act causing damage done in England or wales, or loss sustained here.
If a claim sum is over £100k where can it be issued?
County court or high court - think complexity and public importance
What have the county court money claims centre and county court business centre been replace with?
Civil National Business Centre (at Northampton) pursuant to Civil Procedure (Amendment No.3) Rules 2023.
What sort of claims does the Civil National Business Centre hear? Where do the other types go?
All money claims. The other CC claims will just go to whatever CC the claimant wants, usually the closest
Wat are the 3 divisions of the high court? Where is the main office?
- Kings bench(contract & tort)
- Chancery (Company, partnership, land, trust, contentious probate, patents)
- Family
Royal Courts of Justice
Can you claim in high court that isn’t in London?
Yes there are local district registries e.g in Birmingham. Example, have TCC district registry in liverpool
When are proceedings started? When is claim brought for limitation purposes?
When CF received by Court, but for limitation purposes when received by Court office
Who to issue claim against if D dead?
Executors/personal reps
What value if spec claim? What value if unspec?
Spec: Exact amount & work out interest.
Unspec: Banding i.e anticipate over £100k. Disregard interest & costs; contributory negligence & counter-claims. What if PI? Over £50k is high court, must state if damages for pain & suffering is over £1.5k.
If fixed costs then include, if not put “to be assessed”
Statement of truth for which docs (for issuing claim)
CF, POC (any statement of case really). Either Claimant or legal rep can sign these - CPR Part 22.
What must you warn claimant if legal rep signs?
- Taken as confirmation client authorised
- Warn about contempt of court if lying
- Explain by signing it is taken that client believes facts are true
Legal rep signs in own name with firm nxt to it
What happens if a statement of case is not signed with a statement of truth?
May be struck out
Can you add someone as a new claimant after issue?
Yes but new claimants permission must be in writing and filed at the Court.
Is permission needed to add party to claim?
Yes from court unless CF has NOT BEEN SERVED
What are the grounds to rely on for adding new party before and after lim period?
Before limitation period expires:
- Add new party to resolve matters in dispute;
- Remove a party; or
- Substituted a part if their interest / liability has been passed over to another.
After:
Limitation period must have been current when proceedings started, AND:
1. OG party was mistake; or
2. OG party died/bankruptcy & interest/liability passed over to another; or
3. Claim can’t be carried on without new party.
When must a claim be served on the otherside?
In 4 months.
Can be served on solicitor if nominated in writing.
If injunction, serve personally.
What is personal service?
Depends on type of D.
- Individual: hand to them, leave near them
- Partnerships: leave with partner or person in control/management of business at business address
- Company: leave with treasury, director, secretary, CEO etc
What are the 3 methods of service?
- Personal service
- First class post/DX
- Leave at specified place
- Fax/electronic means (fax number on head paper satisfies, email address need confirmation)
- Alternative method (court must approve)
Where to serve for different types of defendant?
- Individual: usual or last known residence
- Sole trader: as above; or principal/last known POB
- Individual sue in name of partnership: as above; or principal/last known POB4.
- LLP: Principal POB, any POB in jurisdiction that has a REAL CONNECTION with claim
- Company reg england/wales: Principal POB, any POB in jurisdiction that has a REAL CONNECTION with claim
For service of claim form time limit, when is this “step required” met? Is it when carried out or deemed service?
Step required met:
- Personal service: when effected or delivery made
- Letter/DX: when posted or left with DV provider
- When fax transmitted or emai sent.
When is service deemed?
Claim form:
- Second business day after “step required” (inc personal service)
Any other doc (if PoC not sent with CF then it is under this cat):
- Personal service/Delivery to permitted address/ email /fax: if sent before 4:30pm on business day then that day. If after 4:30 then next day.
- First class post/DX: SECOND DAY after posted if that day is a business day. If not business day, then next business day.
When must PoC be served?
Within 14 days of service of CF but no later than 4 months after ISSUE of CF (long stop date).
If not served in 4months then struck out maybe.
Do you need permission from Court to serve out of jurisdiction? How long to serve?
- 6 months instead of 4
- No need for permission in Scotland or NI but specified methods of service in CPR Part 6
- Need permission, even in member states of EU (unless ENGLISH JURISDICTION CLAUSE!)
- CF must have notice setting out why England is correction (i.e breach/damage happened here OR excessive cost or delay if foreign court). Need evidence but can be sent WITHOUT NOTICE
How long to file AoS or Defence (if not AoS served) or admit?
14 days
Why admit part of claim and how?
On response, limit liability for costs
Test for not using ADR and what you need to do?
- Not using ADR? Witness statement in 21 days of proposal
- TEST: Halsey v Milton, Court MAY give costs sanction. Factors:
o Nature of dispute;
o Merits of case;
o How much has other methods of settlement been tried out?
o Are costs of ADR disproportionate?
o Delay in ADR prejudicial (e.g urgent injunction)
o ADR have reasonable prospects of success? - Burden on other party to show mediation refusal s unnecessary NO PRESUMPTION IN FAVOUR OF MEDIATION
Steps for PD on Pre-Action Conduct?
- LoC
- LoR (14 days or 3 months depending on complexity)
PAP on professional negligence steps?
Claimant against against professional for negligence.
- Notify in writing of potential claim (Preliminary Notice) - tell them to inform insurers
- Acknowledge notice in writing in 21 days
- Next, LoC
- Acknowledge in 21 days.
- 3 months for D to investigate and issue LoR or letter of settlement
- If deny all liability, start proceedings
- All other situations negotiate and resolve in 6 months from acknowledgment or at least narrow issues before proceedings.
Consider ADR.
PAP on debt claims steps?
Business to consumer NOT B2B.
- Give full info on debt and up to date statement of account (interest inc) and how debt can be paid). Reply Form, Information Sheet and Financial Statement forms that are annexed to the protocol should also be included.
- 30 days to respond. Can’t issue proceedings before this.
Specified claim - process for admitting the claim or part of the claim?
- Admitting whole specified claim? D to provide expenditure and income, make offer of payment.
- Claimant receives offer, if accepts file request for Judgment. If not, judge decides usually in absence of hearing.
- Admit part of claim? C has 14 days to decide on offers. 3 options:
o Accept offer & part admission in satisfaction of whole claim;
o Accept part admission & reject offer and get judge to decide;
o Reject whole part admission and carry on with claim.
Unspec claim - process for admitting?
- D admits liability and offers amount, Court send notice to C asking if want to accept
- If do, enter judgment
- If reject (or no offer given) judge decides at DISPOSAL HEARING
Can you extend the time for serving the defence?
- Serve on all parties – up to Court unless D’s lawyer says otherwise
- Can extend for further 28 days if C agrees (56 days total). Need Court’s permission for further
Test for if you can apply for default judgement
- CPR Part 12 application
- TEST: for default judgment:
o (1) PoC served on D;
o D did not file AoS or Defence in time. - May be rejected if pending strike out or summary judgment application from D
- Spec claim: state sum due and interest, payment usually in 14 days
- Unspec: DJ awarded but will need DISPOSAL HEARING
- If unspec and spec then unspec
- Loss of profit = unspec
Grounds for setting aside default judgment?
- MANDATORY GROUNDS (think – wrongly entered):
a. Entered DJ too early and D has more time;
b. Claim already paid in full. - DISCRETIONARY GROUNDS:
a. Real prospects of successfully defending claim; or
b. Some other good reason why D should be allowed to defend claim (take into account promptness of application)
- Write to C first before applying
- Mandatory ground C pays
- Discret (a) D pays
- Discret (b) in case
Can you discontinue the claim once its been started?
- Multiple parties? Need consent from all or consent from Court
- Serve notice of discontinuance on all parties. If consent needed then attach.
Can litigants in person file consent orders?
Need to be approved by Court
What does liberty to apply mean in a consent order?
Parties can apply to Court to lift stay and enforce settlement if not complied with (No new proceedings)
How to dispute jurisdiction?
- Do it in AoS, therefore, 14 days
- Lose right if do not
- If refused, have 14 days to file a further AoS and then proceedings continue
Ethical considerations in SoC?
- Do not mislead Court, if client wants you to the try convince them no. If can’t, stop acting
- Client filed SoC, tells lawyer prior to end of litigation that it contains material error which leads court, convince client to amend SoC or stop acting
What interest can be applied for in civil cases and under what authorities
- Interest rate in contract? Use that
- None? Late Payment of Commercial Debts Act 1998 IF COMMERCIAL NOT IF OWED BY A CONSUMER (only debts not damages)
- Any other case:
o S35A Senior Courts Act 1981
o S69 County Courts Act 1984 - Gives Court discretion to award interest
- Interest usually awarded from WHEN LOSS SUSTAINED
What happens if you forget to admit an allegation in the Defence?
- Do not miss a “denied”, if you do not response to allegation it is taken as admitted
- Either admitted, denied or non-admission (i.e not enough info to say)
- If alleging limitation issue, state in defence and give details. Then proof is passed to C to show claim is not time barred
- Burden of proof sometimes falls on D:
o Contributory negligence
o Failure by C to mitigate its losses
When does the burden of proof fall to D?
- Burden of proof sometimes falls on D:
o Contributory negligence
o Failure by C to mitigate its losses
What is a Part 20 claim and do you need the Court’s permission? Do you need Court’s permission for counterclaim?
- Counterclaim will be one doc with Defence – permission from Court not required unless defence has ALREADY BEEN SERVED
- Additional claim – made by D for contribution or indemnity or some other remedy against person whether or not they are a party – usually passing the blame to third party. No need for Court’s permission as long as done before or at time they file defence
What can amendments be made to statements of case within the limitation period?
- After filing before service:
o Amendments can be made any time - After service and filing
o Need written consent of all parties; or
o Consent of court (issue application, and SoC with proposed amendments) - Court will consider overriding objective, cases dealt with justly and at a proportionate cost. This will be balanced against the injustice to application if refused and injustice to opposing party.
What can amendments be made to statements of case after lim period expired
Only 3 instances this is allowed:
- Add or substitute a new claim, if arises out of same or substantially the same circumstances;
- Correct a GENUINE mistake as to the party’s name; or
- To alter the capacity in which a party claims.
What is an RFI ?
- Court or party may do so
- If successful the other side will need to:
o Clarify a matter in dispute; or
o Provide additional info.
RFI procedure
- Serve written request on other party REASONABLE TIME FOR RESPONSE MUST BE ALLOWED (no need for court’s permission)
- Request: concise and strictly confined to matters reasonably necessary and proportionate in order to prepare on case or understand otherside’s case
- Not piecemeally
- Response in writing
What happens if otherside do not respond to RFI?
No response or can’t comply with RFI?:
1. Apply to Court under Part 18;
2. Court will grant order if REQUEST CONFINED TO MATTERS REASONABLY NECESSARY AND PROPORTIONATE IN ORDER TO MAKE YOUR CASE OR UNDERSTAND CASE AGAINST YOU
Procedure for applying for an interim application?
- parties should seek to agree matters themselves (overriding objective)
- Must serve application on other side in 3 CLEAR DAYS BEFORE ANY HEARING. Clear days mean the date of service, the date of hearing, bank holidays and weekends are all excluded. Bear in mind DEEMED SERVICE, i.e, if not claim form it is second day after being posted but only if is a business day (if not then next business day).
- If reached agreement with otherside on order parties want just file a consent order. Court needs enough material so Court is satisfied it is appropriate to make the order. Usually, file with letter.
Test for when applications can be sent off notice?
- Exceptional urgency (think urgent injunction); or
- Can better comply with the overriding objective if without notice.
Examples: freezing order, order to search premises. On notice would give otherside a chance to dissipate assets or hide items.
Procedure and duties with off notice application?
Without notice:
1. Must explain in application why without notice;
2. Duty of FULL AND FRANK DISCLOSURE, this means:
a. Cannot take advantage of Respondent not knowing about the application; and
b. Must point Court to all evidence and arguments REASONABLY ANTICIPATE THE RESPONDENT WILL MAKE.
3. Must AS SOON AS REASONABLY PRACTICEABLE AFTER ORDER IS MADE must serve on Respondent:
a. Order;
b. Application notice; and
c. Supporting evidence.
- Respondent, when in receipt of the above, will have 7 DAYS from date of service of Order to apply to (1) vary; or (2) set aside the order.
When will hearings be by video call or telephone
- PD 23A – general rule that hearings under 1 hour will be by video or telephone
- Exception if for example hearing is without notice
Types of costs orders for interim applications?
- Claimant’s/Defendant’s costs: summarily (instantly) assessed costs, payable in 14 DAYS, example if C’s costs then D pays C’s costs – used if clear winner of app e.g win a summary judgment;
- Costs in the case: winner or loser of claim pays at conclusion of proceedings – may be case if there is a conditional order etc D may continue to defend claim if issue defence in 14 days. If don’t claimant will get their costs at this point;
- No order as to costs: each party bears their own cost. Often if a draw. E.g additional evidence comes to light needing further witness statements.
Test for when Court can grant summary judgment?
- Court considers that:
a. Claimant has no real prospect of succeeding on the claim; or
b. Defendant has no real prospect of defending the claim.; and - There is no other compelling reason why claim should go to trial.
- 2 part test, need no real prospects AND no compelling reasons
- Either party can apply for summary judgment
- If there are complex issues that need proper investigation at trial or difficult question of law then will not be suitable for summary judgment
Examples for compelling reasons for summary judgment?
o Need more time to investigate e.g difficulties contacting key witnesses;
o Claim/defence highly complicated and technical; or
o Need to hear from witness e.g contract is oral.
- At the summary judgment hearing is not a trial. Focus on establishing a compelling reasons to allow proceedings to continue and do not attempt to argue case in its entirety.
