Dispute Resolution Flashcards
What is the process of litigation?
The process of taking legal action using the court system. Normally used when other attempts to resolve a claim have failed.
At what time can negotiations take place?
Any time either pre or post litigation.
What is different about the negotiation process to other forms of resolution?
The conversations or correspondence is made without prejudice.
What does without prejudice mean?
They cannot be relied upon by the other party or referred to in court.
What is ADR?
A collective description of methods of resolving disputes otherwise than through the normal trial process.
When should ADR be considered?
Court of Appeal has confirmed this should be routinely considered to encourage parties to settle disputes at an early stage without proceeding to costly negotiations.
What is a lawyers obligation regarding informing the client of ADR?
Need to make sure clients understand the availability and purpose of ADR and provide advice in appropriate situations.
Is consent required for ADR?
Yes, it is a voluntary process.
Can a party refuse to engage in ADR?
Yes, however the courts have made it clear it is unacceptable to respond to a request for ADR. If a party believes ADR is inappropriate they should state this in their response. The court can penalise a party in respect of legal costs if they do not agree to participate in ADR even if their claim is successful.
Who would usually use arbitration?
Parties to large value, complicated contracts and international commercial agreements.
What is the procedure of arbitration?
The parties appoint a arbitrator, usually a solicitor or barrister or other professional such as architect or surveyor. The professional will discuss the case indivudually with each party and provide a timetable for resolution. After consideration of all of the evidence, the arbitrator will make a final decision known as a final award.
Is a final award in arbitration legally binding?
Yes.
What evidence is usually supplied in arbitration?
Parties will normally be required to make written submissions and produce relevant documentation.
What is mediation?
An informal, confidential and voluntary process in which a neutral third party assist disputing parties in reaching a resolution.
Who is likely to be appointed as a mediator?
Anyone, usually a third party with no personal interest in the outcome.
Is a decision in mediation binding?
Yes, once the final written agreement has been signed.
Can a party withdraw from arbitration?
No, once parties agree to arbitrate they must follow this process unless both parties agree to use another method of dispute resolution.
Can parties withdraw from mediation?
Yes, they are free to walk away at any time.
What is the procedure in mediation?
The parties appoint a neutral mediator and the parties meet at an agreed venue on a specific date where the mediator will spend the day assisting the attendees to find common ground. If the parties reach an agreement, a settlement agreement is drawn up.
What is the role of a mediator?
They do not rule on the merits of the claim nor suggest or impose settlement terms.
Who pays the mediator?
Each party contributes jointly.
What is early neutral evaluation?
A ‘neutral’ is appointed to hear each side’s case and to render the opinion of the probate outcome at trial, with the view to encourage settlement of the claim.
How would the ombudsman be used to settle disputes?
A person is appointed to investigate claims against public organisations or certain private services.
What will be the outcome if a person attempts to make a claim after the limitation period has ended?
The defendant can raise the passage of the limitation period as a defence and try and have the claim struck out.
What is the outcome if a solicitor raises a claim which is statute barred?
It will be deemed negligent and not acting in the clients best interests.
What effect does the Limitation Act 1980 have on claims?
Lays down the limitation period for various types of claims.
What does it mean when a claim is statute barred?
Legal action has not been commenced within the time limits allowed.
What is the limitation period for latent defects?
15 years
What is the limitation period for breach of contract?
6 years
What is the limitation period for most claims in tort?
6 years
What is the limitation period for claims in person injury?
3 years
What is the limitation period for fatal accident claims?
3 years
What is the limitation period for defamation claims?
1 year
What is the limitation period for unfair dismissal?
3 months
What date does the limitation period start?
The date of accrual action.
When is the date of accrual action?
When the relevant tortious act occurs or if this would not be fair, from the date the claimant first gains knowledge that they have a claim.
When would the claimant be classed as gaining knowledge of a claim?
When they have sufficient information to commence investigations into a potential claim against the defendant.
When is the accrual date for a breach of contract claim?
On the date of breach.
What change has the Latent Damage Act 1986 brought?
Introduced an additional limitation period for claims which the limitation period may expire before a party is aware that a claim exists.
In what circumstances would the Latent Damage Act be available?
Negligence claims for latent defects (defect in a property caused by a fault in design, materials or workmanship) that existed at the time of construction but not apparent at that time.
When would the time limit be under the Latent Damage Act?
Later of the following:
- 6 years from the date of accrual (cause of action)
- 3 years from the earliest date on which the potential claimant knew, or reasonable ought to have known, they had the necessary facts to bring a claim.
However there is a 15 years longstop date for all claims.
Are clauses in a construction contract excluding liability after the agree limitation period valid?
The courts will consider them under the reasonable test.
If a claim is served, when does the limitation period end?
When the claimant delivers the properly completed form to the court office with a request to issue together and the correct fee. ALL elements must be provided.
Can any changes to the claim be made after the limitation period?
The name of the defendant can be altered only if they have been mistakenly named however if a new party is to be added, the limitation period would still apply.
When will the limitation period begin for a minor?
Their 18th Birthday.
When will the limitation period begin for a claimant who lacks capacity?
When certification is issued that the claimant is of sound mind however if the claimant had capacity when the action accrues, the clock will not stop running even if the claimant loses capacity during this time.
When does the limitation period begin when their is fraud or concealment?
From the date the claimant discovers the fraud or concealment or should have done so with reasonable diligence. It will not run whilst a relevant fact has been deliberately concealed by the defendant.
When does the limitation period begin for claims where there is mistake?
Time does not start to run until the mistake has been discovered or could have been discovered with reasonable diligence.
What is the purpose of the Pre-action Protocols?
To focus the parties trying to settle the dispute without litigation.
How do the pre-action protocols aid settlement?
Enable the parties to obtain the information they need to engage in negotiation.
How do the pre-action protocols used to aid settlement?
Lay the groundwork for proceedings.
How will the pre-action conduct be considered post-litigation?
The court will examine the conduct of the parties and any failure to comply is likely to have adverse cost consequences for the non-compliant party.
Is there one protocol?
No, more common types of claims have their own protocols which is to be followed.
What will be followed when there is no specific protocol?
Court expects litigants to follow the guidelines set out in the Practice Direction on Pre-Action conduct and protocols.
What are the 6 parts to the Practice Direction?
- Claimant should write to the defendant with concise details of the claim
- Defendant should respond within a reasonable time (protocol suggested 14 days however no more than 3 months depending on the complexity of the case)
- Parties should disclose key documents relevant to issues in the dispute
- Parties should be aware that the court must give permission before they can rely on expert evidence, and the court can limit fees recoverable
- Parties should consider ADR
- If not possible to resolve the issue within the pre-action process, the parties are encouraged
When is a personal injury protocol used?
For claims in fast track but does not apply to clinical negligence disputes or most low value, road traffic accident personal injury claims.
What is a letter of claim to include in a personal injury claim?
- Clear summary of facts
- Details of injuries sustained and the impact they have on the claimant’s day-to-day life
- The hospital attended with any reference number
- Indication of financial losses (known at that stage)
What should be included in the letter of claim in addition to the basic items?
An indication as to whether a police report is available. List of documents the claimant proposes to disclose and seeks from the defendant and make is clear they expect a response within 21 days.
What are the requirements for a defendant’s response in a personal injury claim?
Must respond within 21 days If there is no response the claimant can start proceedings. If a response is received, the defendant has 3 months to investigate the claim, after which they can admit or deny liability.
Where there is denial, reasons must be given and the letter of denial should contain a list of documents likely to be disclosed at proceedings.
What is a disclosure of documents list?
This is to be sent with the claim form confirming the list of documents expected to be required for the claim.
What should a claimant do if they wish to instruct an expert?
The protocol provides that the claimant should strive to choose that expert jointly with the defendant. The claimant is to send a list of suggested experts to the defendant, who then has 14 days to disagree. If the defendant disagrees, each party can instruct their own.
What happens if the protocol fails to reach a settlement?
The claimant can then issue proceedings. The defendants insurer will normally nominate solicitors to accept the service.
What happens if the protocol reaches a settlement?
The claimant should then send the medical report that they rely on and a schedule of past and future expenses with as much detail as possible
What does the construction and engineering protocol apply to?
Construction and engineering disputes.
What are the consequences for failing to comply with the practice direction or protocols?
The court will consider non compliance when giving directions for the management of proceedings or when making order for costs.
In disputes against who would the Construction and Engineering protocol be issued against?
Architects, engineers and quantity surveyors.
What are possible consequences of failing to comply with the practice direction?
Sanctions, a stay of proceedings to allow the Practice Direction or step in the particular protocol to be complied with.
What sanctions can be applied if any party breaches the practice direction or protocol?
Ordering the non-compliant party to pay the costs of the other party, of the non-compliant party is the claimant, the court may deprive the claimant of interest or restrict the rate or period of interest.
When might it be appropriate to issue proceedings?
There are certain options when there is no option but to issue court proceedings or where the court is unlikely to criticise if an action is commenced before compliance with a protocol.
Is a court application required?
Not usually however there are some situations where an application may be appropriate before commencing proceedings.
When would it be required for a party to make a pre-action disclosure?
If it felt disclosure of documents held by the party are necessary to investigate a potential claim fully.
What can be sought from a non-party?
An application for pre-action disclosure is possible against someone who is not a party, but only if it will support there claim or adversely affect the opponents case and is necessary to dispose of the matter fairly or to save costs.
What must the applicant show if a claimant wants to make an application for a pre-action inspection of property?
- The property is, or may become, the subject matter of proceedings
- The property is relevant to the issues that will arise in those proceedings
How does a claim start?
A claimant completes a blank form and send it together with the appropriate fee to the appropriate court with the request to issue the claim form.
What types of claims would be heard in the High Court or County Court?
The choice of Court depends on the value of the Court.
What are the restrictions on a High Court jurisdiction?
Proceedings cannot start in teh High Court unless the total value is more than £100,000 except for person injury claims which is £50,000.
Can a claim worth more than £100,000 be heard in the County Court?
Yes.
What are the requirements for a claim to be filed in the High court?
Financial value of claima nd amount in dispute
Complexity of facts, legal issues, remedies or procedures involved
Importance of the outcome of the claim to the public in general, the claimant believes that the claim ought to be dealt with by a High Court Judge
Can a case be transferred from the High Court to the County Court?
If a claim is started in the High Courtand the court feels that the County Court is an appropriate venue, it can exercise its powers of management to transfer or strike out the claim.
What are the 2 County Court Centres?
County Court Claims Centre
County Court Hearing Centres
What cases will be heard in the County Court Money Claims Centre?
Claims over £100,000
What is the procedure for applying to the County Court Money Claims Centre?
The claimant should complete a money claim forn which will be issued by the CCMCC in Manchester. Unless special procedures apply, all County Court claims should be issued out of the CCMCC,.
What are the 3 divisions of the High Court?
Chancery
Family
Queens Bench
Where and what is the High Court?
Located in London, also known as the RCJ however it has a number of district registries in most large towns or cities.
What district will the claim be heard in?
The claimaint indicates where they want the claim to be heard.
What types of claim are heard in the Queen’s Bench Division?
Defamation Breach of Contract Negligence Personal Injury Land Possession Non-payment of debts
What cases will be heard in the Chancery Division?
Equity and Trusts Commercial fraud Tax Intellectual fraud Land Business disputes Contentious probate Regulatory work Bankruptcy Professional negligence
What does a claimant start legal proceedings?
By completing a blank claim form setting out brief details of the claim. The claim form is then issued by the court and served on the defendant either by the court or claimant’s solicitor.
What is the name of the claim form to be used?
N1
What are the 4 main points to be put on the claim form?
Name and address of parties
Details of the claim
Remedy claimed
Value
How must a persons name show on the claim form?
A persons full name as ‘a person’s unabbreviated name (an if they are carrying out business then that name too), the full name of a partnership and every partner and the registered name of a registered limited liability partnership or company.
How must the details of the claim be contained on the claim form?
A concise statement of the nature of the claim. It should provide brief details so that the court can see what the claim is about and general terms.
How must the remedy claimed by noted on the claim form?
The form should state the remedy sought by the claimant e.g. injunction or damages.
How must the details of the value be included on the claim form?
Must contain a statement of value, partly to enable the court to determine which track the court should be allocated to.
What is a claim for a specified sum called?
Debt claim.
What is a claim for an unspecified sum?
if the court must assess the damages awarded, the claim form should state how much the claimant expects to recover.
What additional part must the claimant put in the claim form if the claim is for the High Court?
A statement that the claimant expects to recover more than £100,000 or details of the enactment that provides that the claim may be commenced in the High Court
How would a court value a claim?
They would disregard interest, costs, contributory negligence and any counterclaim together with any sums repayable to the Compensation Recover Unit.
How is the court fee calculated?
Depends on the amount of damages claimed. If the claim exceeds, £10,000 but less than £200,000 the fee is 5% of the value of the claim. For claims exceeding £200,000 the fee is set at £10,000.
What is a particulars of claim form?
A formal written statement setting out the nature of the claimant’s case.
When will a particulars of claim be filed?
Sometimes with the claim form however no later than 14 days following service of the claim form.
What is a statement of truth and where would it be served?
A claim form must include a signed statement of truth. A declaration by the claimant that the facts stated within the claim form are true.
Can a statement of truth be signed by a solicitor?
Only in very rare circumstances.
What must be sent to the court with the claim form?
Enough copies of the claim form for service on each defendant, together with a copy for the court file
If the claimant wishes the court to serve the proceedings and proposes the Particulars of Claim are served at the same time.
Where the claimant is proceeding via a Litigation Friend (where claimant is under 18 or lacks capacity)
If the court is serving, a notice of funding should be attached, confirming how the claimant’s claim is funded.
The court fee is to be enclosed.
What does the court do with the documents and claim form when received?
The court issues proceedings by sealing the claim form and allocating a claim number to the case. The court then issues a Notice of Issue to the claimant, confirmign the date the court issued the claim.
When would a Part 8 Claim form be issued?
When there is no substantial dispute of fact.
What must a part 8 claim form state?
That Part 8 applies
The questions that the claimant wants the court to decide or the remedy sought and the legal basis for the claim
Details of the claim being made
The capacity of the representative if applicable.
When can witness evidence be served?
With the claim form and the form should be included in the particulars of claim form. Any evidence in support must contain a statement of truth.
How must the defendant respond to a part 8 claim?
Does not make a formal defence, the fiule their witness evidence with their acknowledgement of service and the court treats the claim as if allocated to the multi-track.
What are the consequences of failing to respond to a part 8 claim?
If the defendant does not respond, they cannot take part in the hearing unless the court gives permission.
What are the time limits for the service of the claim form?
The claim form must be served on the defendants within 4 months of the date of issue.
What is the exception to when the claim form needs to be served within 4 months?
Where the defendant is out of the jurisdiction, this must be served within 6 months.
Who will serve the claim form?
The court unless the claimant specifically asks them not to do so.
How will the court serve the claim form?
First Class Post.
What are the documents included in the service?
The court will include the claim form, particulars of claim (if provided), any medical report, and schedule of past and future loss and expense, notice of funding, any certificate of suitability of a Litigation Friend. The court will also serve a defendants response pack,
What is the defendants response pack?
A form the defendant is to send back to the court containing an acknowledgement of service and an indication of whether the defendant will defend or contest the jurisdiction.
What happens if the claimant asks the court not to serve the claim form?
The court will return the form to them and it becomes the responsibility of the claimant to ensure they serve proceedings on time and that all the relevant documents are included.
What happens if the claim form is not served on time or there is missing documents in the claim form?
The service will not be deemed effective.
What are the other methods of service?
- Service on Defendant’s nominated solicitors
- Personal Service
- Handed to the individual being served
- Fax
- DX
What is the process of service on a defendant’s nominated solicitors?
If the defendant has nominated solicitors to accept service, the proceedings usually must be served on the nominee, unless the contract provides otherwise.
What is the process of personal service?
If hte defendant has not niminated solicitos, a claimant must serve on the defendant personally. This can be leaving the proceedings with the individual directly or a person in a senior position of the Company or a partner of a firm.
What is the process of service being handed to the individual being served?
Requires the individual being served to take hold of the papers. If the individual bins or hands back the papers, this is still deemed served as long as the process server has explained the nature of the documents.
What is the process of service by fax?
Can only take place if the party has indicated in writing they accept service by fax and tghe party has given the fax number to which they should receive documents.
What is the process of service by DX?
Can be served if the party’s address for service includes a DX, the DX number is on the party’s writing paper and there has been no explicit indication that service will not be accepted in this method.
What is the process of service by email?
Only if there is exprerss consent to such service and the party has given the email address to which the party must transmit documents.
Does an email address on a party’s letter headed paper allow service to be done via email?
No.
When is a claimant deemed to be served?
A claimant needs to know when service has occurred in order to ensure taking the next step of proceedings on time. The claim form is deemed served on the second business day after the step (email post) etc has occured.
What is the process of serving if the defendant’s whereabouts in unknown?
The claimant must take reasonable steps and make reasonable enquiries to ascertain the defendant’s current address. Otherwise, it should be safe to serve on the defendant’s last known address.
What is the process of serving if the defendant is in prison?
The claimant should serve on the defendant in prison.
What does a defendant need to do if they do not think the service was valid?
They need to indicate as such on the acknowledgement of service and make an application within 14 days.
What is a certificate of service?
If the court serves the claim form, they will send a certificate of service form and send it to the claimant.
What happens if the proceedings are undelivered?
The court will notify the claimant.
What happens if notice of claim is required outside of the jurisdiction?
Might require permission of the court.
When will permission not be required for service outside the jurisdiction?
If the defendant resides in Scotland or Northern Ireland or in other situations in which the defendant is resident in the UK.
When is permission required for service outside the jurisdiction?
If a court in England and Wales can be shown as the most appropriate forum for resolution of the claim, a party can make an application for permission to serve a claim form on the defendant out of the jurisdiction.
What happens if service can not be achieved within the validity period of the claim form?
The court might permit service be an alternative method if they can show a good reason for the order.
What time does a defendant have to respond to a claim?
14 days within date of deemed service of the Particulars of Claim.
What are the ways in which a defendant can respond to a claim?
Admit the claim
File and serve a defence to the claim
Acknowledge service and indicate that the propose to defend the claim
What happens if the defendant does not respond within 14 days of the deemed date of service?
The claimant can obtain a judgement from the court
Can an extension to the time a defendant can respond to a claim be granted?
If agreed by all parties. but only for a further 28 days from the deemed date of service of the Particulars of Claim. The defendant must inform the court.
What happens if the defendant admits the claim in whole?
The amount of hte claim is a specfied sum, the court will issue a judgement order to include accrued interest and fixed costs, which the defendant is then required to pay.
What happens if the defendant requests further time to pay?
They need to provide details of assets, income and outgoings. The claimant can either accept or raise objections to the request. If the claimant objects, the court will determine the appropriate level of instalments, or alternatively list for a hearing to decide.
What happens if the defendant admits the claim for an unspecified amount?
The court wll stay the case and will set the case down for a disposal hearing, to enable the court to determine the appropriate level of damages.
What happens if the defendant admits the claim however is a minor or protected party?
The court must approve an admission or any offer to pay.
What happens if the defendant partly admits the claim?
The defendant will need to file a defence to the party that is in dispute.
What happens if the claimant admits liability but disputes quantum?
They canaccept responsibilty for the breach however not the injury or damage caused by the claimant.
What happens if the defendant wants to withdraw an admission?
This must be done with the permission of the court.
What will the court consider when deciding whether to accept a withdrawal of an admission?
Prejudice to the parties
The reasons why the admission was made
The stress that a party was under when they made the admission
Interests of the public
Time when the application to withdraw the admission was made
What must a defence contain?
Set out the reasons they disputed the claim and put forward an alternative version to persuade the court the claimant’s case is unproven. The defence may refute the claim in its entirety or it may simply deny causation.
What does an acknowledgment of service allow?
An additional 28 days to respond to the claim
Indicate intention to dispute the claim
Admit some of the claim but ask for time to pay
Dispute the jurisdiction of the court
When can a summary judgement be applied for?
Once the defendant files an acknowledgement of service and if they can show the defendant has not realistic defence to the action.
What happens if a default judgment is granted?
The defendant is not permitted to defend the claim further and is required to pay the specified amount or to pay a sum in damages to be decided by the court.
When can an application to set aside a default judgement be successful?
The court must be satisfied that
The defendant has a real prospect of successfully defending the claim
There is some other good reason why the judgement should be set aside and the defendant allowed to defend the claim.
What are the time requirements for the request to set aside a judgement?
Whether the defendant acted promptly when requesting the judgement be set aside.
What happens if the court agrees to set aside the judgement?
Can impose conditions on the defendant.
When can a claimant discontinue a claim?
At any stage.
How does a party discontinue their claim?
Filing a Notice of Discontinuance, giving formal notice to the defendant that they do not intend to proceed with their claim.
Can a defendant claim costs if the claimant discontinues the claim?
They can argue they should recover the costs they have incurred in defending the claim, as the claim has not been successful.
When can a settlement be agreed between the parties?
Any stage.
When will a settlement be legally binding? /
When it is embodied by the court order setting out the terms of the agreement and specifying the time for payment.
What is the overriding objective?
Identifying the issues in the case early in order to decide what justifies court time and to enable them to give direction to ensure that the trial can proceed promptly, fairly and proportionately.
What are the purpose of the statements of case?
Provide an outline of a party’s case on liability, causation and quantum.
What is the aim of the particulars of a case?
To provide the parties and the judge with enough information to identify the issues in the case early and to enable the judge to give directions to ensure that the trial can proceed promptly, fairly and proportionate.
When a claimant is claiming interest on damages what must they do?
State the basis of the claim
If the claim is for a specified sum, state the percentage rate at which interest is claimed, the date from which interest is claimed, the date the claim fo rinterest ends, the total amount of interest claimed and the daily rate at which interest accures after that date.
How must a defence be served?
Prepare a defence and serve it on every party to the claim.
If the defendant fails to respond to a particular paragraph in the Particulars of Claim, what is the effect?
Deemed to be admitted.
What must be contained in a defence if the defendant is to deny part or all of the claim?
State the reasons for doing so and set out an alternative versions of events, which is often referred to as the defendant’s positive case.
What is the effect if a defendant denies the claim?
The claimant must prove it.
