Dispute resolution Flashcards
How much does a personal injury claim need to be worth for it to be commenced int the High Court?
£50,000 or more
What is the value for a personal injury claim to be issued in the county court
Less than £50,000
How much does a NON-Personal injury claim need to be worth for it to be commenced in the High Court?
More than £100,000
What is the value for Non-PI claims to be issued in the county court?
Up to £100,000
What are the three grounds for issuing in the high court?
Financial value, complexity of facts / issues or remedies AND importance to the public
What happens if proceedings issued in wrong court?
Court can transfer claim at a cost to the claimant
What courts are in the kings bench division?
Commercial, circuit commercial, technology, admiralty, administrative, planning, general, some finance
What courts are in the chancery division?
Business list, insolvency and companies, revenue, competition, intellectual property, property, trusts and probate, some finance
In regard to the rules of precedent, which court’s rulings bind themselves?
Court of Appeal, the High Court (except for decisions taken by a single judge) the Upper Tribunal.
In regard to Conditional fee agreements (eg no win no fee) a solicitor may charge a success fee of up to 100% on top of the normal fee. What is the limit of a success fee in personal injury cases?
25% of the damages of the general damages.
In a damages based agreement, what percentage of the damages can a solicitor seek to recover in a personal injury case?
25% of damages, excluding damages for future care and loss
In a damages based agreement, what percentage of the damages can a solicitor seek to recover in an employment tribunal case?
35% of damages
In a damages based agreement, what percentage of the damages can a solicitor seek to recover in all other cases (all other meaning not personal injury or employment)?
50% of damages
What is the maximum value for a claim on the fast track?
Not more than £25,000 (trial must be 1 day max) (oral expert evidence limited to one per party in two fields max)
What is the limitation period for personal injury claims?
3 after the latest of: the date when the cause of action accrued; or the date of knowledge of the person injured.
What is the limitation period for all claims other than personal injury?
6 years after the date on which the cause of action accrued.
If a claimant loses its case, what is the limit of the cost order against them?
The level of damages and interest awarded to the claimant
What is summary assessment of costs and when do they normally take place?
Rough and ready assessment there and then, normally at the end of an interim application lasting one day or less, or at the end of a case on the fast track.
When are statements of costs filed?
At least 24 hours before the hearing
What are detailed assessments of costs?
Not decided there and then, the judge doesn’t assess the costs, the other parties try to come to an agreement. If they can’t be agreed one party will serve a bill of costs which the other party will reply to and then if no agreement ensues, the costs officer will determine the costs.
What is an interim costs order?
Normally made after an interim application to decide the costs of that application following the hearing of that application.
Order for costs in any event
D should pay C’s costs in any event
No order as to costs
No party can recover the costs of the interim application from the other party, and again that remains the case regardless of what happens at trial
Costs in the case
The costs of this application should be paid by the party that pays the costs following the trial so effectively the costs of the interim application are just lumped in with the costs of the action as a whole and paid by whoever pays those costs. Normally appropriate when the court does not think that either party is successful in relation to the interim application, or the interim hearing is more of a case of case management or procedural.
When is permission required by the Defendant for service?
Where the intended method of service is email or fax
When do the particulars of claim need to be served?
Within 14 days of the claim form (and within the four month period of service)
Deemed date of service of the claim form?
Second business after completion of the relevant step
Deemed date of service for docs other than the claim form?
Post: Second day after posting if a business day (otherwise the next business day)
Instant method (electronic, fax or personal service): If before 4:30pm then that business day, otherwise the next business day.
What is the deadline for service of the Acknowledgment of Service?
14 days following service of the particulars of claim.
When is the deadline for filing a defence?
14 days after service of the PoC unless an AoS is filed. If an AoS is filed the deadline is 28 days after service of the PoC)
How long can the claimant and defendant agree to extend the deadline to file a defence?
A further 28 days ( so it can be a max of 56 days in total)
Counting time rules
1) Do not count the date on which the period begins.
2) Day on which the period ends is included unless the period ends on an event e.g. 5 days before a hearing - hearing day doesn’t count
3) Periods of 5 days or less do not count weekends.
4) Court office closed? In time if done on next open day.
When must a defendant admit a claim?
Within 14 days of service of the PoC
What is the time limit for serving interim applications?
As soon as possible but not less than 3 clear days before the date which the court has set for the hearing
Rules in relation to summary judgment and interim payment orders
It must be served at least 14 days before the hearing. The respondent must respond at least 7 days before the hearing. At least 3 days before the hearing the applicant will serve it’s evidence in reply.
What is an application for security for costs?
An application by a defendant who is concerned the defendant does not have sufficient funds to meet the defendant’s costs should the claim be successfully defended.
What is an application for interim payment?
An interim payment is payment on account of damages, debt or other sum (except costs) which a defendant may be held liable to pay to a claimant. Usually happens when a D has admitted liability to pay damages (or some other form of money) to the claimant. Court could be satisfied that if the claim went to trial the claimant would obtain judgment for a substantial amount of money.
Will permission be required to file a counterclaim against a person other than the claimant?
Yes always
Will classic counterclaims or claims for a contribution or indemnity from an existing party need permission?
Not if filed at the same time as the defence.
Will an additional claim need permission from the court to be made?
Not if filed at the same time as the defence
If an additional claim is made without permission, when must it be served?
Within 14 days
Requirements for small claims track?
£10,000 or less
When must a budget report be filed?
21 days before the first CMC
When must a disclosure report be filed
Not less than 14 days before first CMC
When must the draft directions and or budget discussion report be filed?
no later than 7 days before the first CMC
When should a with notice interim application be served on the respondent?
Not less than 3 clear days before the hearing.
What is the usual order for disclosure in the fast track?
Standard disclosure
Standard disclosure
Is it a document that is/was in the party’s control? Does it adversely effect a case or does the document support a party’s case?
Would legal advice from someone who is not a lawyer be subject to litigation privilege?
Absolutely not! Only lawyers!
Litigation privilege?
Confidential communication between the lawyer and client or them and a third party where the dominant purpose in creating the document is to obtain legal advice, evidence or info for use in the conduct of litigation which was at the time reasonably in prospect
When will the court likely make an order for pre-action disclosure?
When the respondent is likely to be a party to subsequent proceedings and if proceedings started then the document would fall under standard disclosure and it is in line with overriding objective.
What is the general rule on costs for pre action disclosure?
Applicant will pay the respondents costs unless the respondent is not complying with a pre-action protocol.
Norwich Pharmacal Order
Where proceedings can’t be commenced because the identity of the defendant is unknown, a third party will disclose the information allowing the claimant to sue the right defendant. Issue a claim against persons unknown.
Can the waiver of privilege of one doc result in the waiver of privilege of connected docs?
Yes if they all deal with the same subject matter and only permitting inspection of the first document could lead to the facts being misunderstood.
If a document is referenced in a statement of case will its privilege be lost?
Privilege will only be lost if necessary which will depend on the circumstances, so the parties should tread very carefully in this regard.
What is the time limit for inspection of disclosed documents?
7 days from request.
Can a party rely on a document which he fails to permit inspection of?
No, not unless the court gives permission.
What can the court control in relation to witness statements?
number of witnesses, length of statement and issues in relation which the evidence should be permitted
Is permission required for expert evidence?
Yes and it will be restricted to what is reasonably required. They also need permission to give oral evidence.
Is hearsay evidence admissible in civil proceedings?
Yes but treated carefully (it is indirect and less reliable)
Notice that hearsay evidence will be used at trial must be given to the other party, except in which cases?
When it is in a witness statement of a witness giving oral evidence at trial, or when it is in a witness statement of a witness not giving oral evidence (however the other party must be informed why they are not giving evidence at trial with reasons.)
Calls for cross examination of a witness who gives hearsay evidence but is not due to be called as a witness at trial for oral evidence.
An application to cross examine such a witness must be no later than 14 days after the hearsay notice was served.
When must a hearsay evidence notice be given?
No later than the latest date for serving witness statements
When must notice of hearsay be given?
For evidence not contained in a witness statement or expert report, for evidence not to be given orally or for evidence not subject to the notice of intention to rely on hearsay provisions
When will an affidavit be needed?
As evidence for an application for a search order or freezing order
How will an affidavit be sworn?
By a jurat (not a statement of truth) it must be signed by the person making it (the deponent), be signed by the witness who must be qualified to witness it and be signed on behalf of the person rather than their company.
If a Part 36 offer is made by either party and accepted within the relevant period (21 days) who pays whose costs?
The defendant pays the claimant’s costs always.
If defendant offers a part 36 offer, in order to receive full benefits of part 36 what must they offer?
A single sum of money, payable within 14 days of acceptance.
If a part 36 offer is accepted within the relevant period, what happens to the costs of the claimant?
The claimant will be entitled to its costs up to the point of acceptance.
If a part 36 offer is accepted after the end of relevant period, what happens to the costs of the claimant?
The default position is that the claimant is entitled to its costs up to the end of the relevant period. Offeree will pay the offeror’s costs after the relevant period (because they should have accepted the offer)
if C wins at trial and made a Part 36 offer which is at least as good as the judgment made, what are the extra benefits?
Extra interest, extra costs, interest on costs from relevant period (not more than 10%) and a lump sum of money (10% up to £500k and 5% above £500k, capped at £75k)
If C wins at trial and D made a part 36 offer, what are the benefits to the defendant?
D will be liable for C’s costs, but D will get costs paid from the end of the relevant period and some interest on those costs. The offer must not have been withdrawn.
What is the cap on interest following the claimant making a part 36 offer where they win at trial more advantageously than the offer?
10% interest on the damages, interest on costs not exceeding 10%, additional sum 10% of £500k and 5% above £500k capped at £75k
What are the consequences of a part 36 offer being made with 21 days of trial?
no cost consequences in relation to part 36 unless court abridges the relevant period it.
What are the benefits of a tomlin order?
They are confidential (the schedule part) and can go beyond what the court can order.
What is better for international enforcement, arbitration or court proceedings?
Arbitration. The reason for this is that the vast majority of countries are signatories to the New York Convention which means arbitration awards can be enforced internationally, whereas court judgments are more difficult to enforce and usually depend on there being a specific agreement between the two countries.
When must an application to the appeal court be made?
Within 21 days of the lower court’s decision and it must be in writing
Grounds for Appeal are…
Wrong (error of fact, of law or error in the exercise of discretion. Unjust (procedural or other irregularity)
Classic route of appeal
County Court district judge –> County Court Circuit Judge –> High Court Judge –> Court of Appeal –> Supreme Court
When is a PTC sent to each party?
At least 14 days before the due date for filing. The due date will be at least 8 weeks prior to the trial date or the start of the trial period.
Deadline for filing the trial bundle?
No more than 7 days and no less than 3 days before the trial begins
What is the rate of interest on judgment debts and when do they run from?
8% per annum and when the judgment is given / made
When is payment of a judgment debt due?
Within 14 days of the order plus interest
Which goods are exempt from a taking control of goods order?
Tools of the debtor’s trade to an aggregate value of £1,350 and basic domestic items such as clothing, bedding, furniture and essential household items.
Which court to proceed in for a taking control of goods order?
Less than £600 County Court more than £5000 High Court
How much notice does an enforcement officer need to give before seizing goods?
7 clear days (within 12 months)
What is the limit for a petition for bankruptcy?
More than £5000
What is the limit for a petition to wind a company up?
More than £750
Are asymmetric agreements caught under the Hague Convention?
NO
What law of which country will govern a country where the dispute relates to a contract for the sale of goods?
The country where the seller has habitual residence.
What law of which country will govern a country where the dispute relates to a contract for the provision of services?
The country where the services provider resides.
In tort which country’s law applies when the parties cannot agree which law to apply and when they live in different countries?
You apply the law of the county in which the damage occurs.
When is the Hague Convention in force from?
1 January 2021
When will the Court give permission to serve out of jurisdiction?
If a gateway is established, if the claim has a reasonable chance of success, if England and Wales is the ‘proper place’ to bring the claim.
What are the gateways to establish whether the court will permit service out of jurisdiction?
1) Person lives in E&W
2) Contract was made in E&W
3) Contract governed by E&W law
4) Contract states that E&W have jurisdiction
5) Breach of contract is committed in the jurisdiction
6) Damage was sustained within the jurisdiction
7) An act which caused damage was committed within the jurisdiction
How many days after filing an AoS must the defendant dispute the court’s jurisdiction?
14 days
When will a party apply for summary judgment?
When filing the directions questionnaire
