Dispute resolution Flashcards
Protective proceedings
Protective proceedings can be issued to ensure that the limitation period does not expire. Claim form + particulars of claim must then be served within 4 months after the proceedings begun.
Enforcement of money claims - oral examination. steps.
Court order to obtain more information about the debtors finances to investigate how best to enforce a money claim. Made by oral examination of the debtor by an officer of the court:
- Hearing usually set in County Court
- Creditor files notice of application which sets out name of debtor, sum and judgment to be enforced. Specific documents to be produced at hearing should be listed
- Order is personally served to debtor
- Debtor can within 7 days request payment of travel expense to and from court
- In the hearing, standard questions are asked and there is written a record
If the debtor fails to attend the order, the judge will make a committal order, which usually is suspended if the debtor complies.
Methods for enforcing money claims
- Writ or warrant of control: takes control of the goods, can seize and sell. cannot force entry in home, but might be possible for business premises.
- Judgement under 600: Warrant in county court
- Judgement between 600-5000: wither warrant or writ (if in the high court, the judgement must be transferred). can be enforced by an enforcement agent within 7 days clear notice, unless the court orders a shorter period.
- Judgement over 5000: Writ of control to the High court.
- necessary items exemption for individuals: items needed to take are of debtor + family cannot be seized. - Charging order: charge over land or securities, incl. jointly owned. reg in Land Reg or as a Land Charge
- Third party debt order: debtor pays debt to creditor instead of creditors debtor. after an interim freeze order followed by hearing after 28 days
- Attachment of earnings order: salary paid straight to creditor
Enforcement of money claims in other jurisdictions
Scotland + Northern ireland: must make application to relecant court within 6 months after judgement.
Common wealth: judgement registered within 12 months and then 6 years to engorce
Other: depends on national court and creditor will have to issue fresh proceedings.
Appeal deadlines
C to H: 21days
H to A: usually 21 days
H to A: 28 days.
Appeals depending on type of judge
District judge in the county court → Circuit judge in the county court
Circuit judge in the county court → High court judge
Master (name of High court judges in London)/district judge in the High court → High court judge
High court judge → Court of appeal (must list oral hearing within 14 days if the application cannot be fairly determined without one. Permission is required for appeal for all cases.
Grounds of appeal
Wrong (fact or law)
Unjust (procedural irregularity)
Part 36 offer: how, when and deadlines
A settlement offer may be made at any time but if a party rejects a part 36 offer there are penalties if the court later finds that the offer was suitable. Penalties could encompass damages, interests and costs and would be imposed from the day the relevant offer expired (21 days after offer was made), unless the court decides it would be unjust to do so.
An offer that merely replicates the whole of the claimants claim is not considered a genuine offer and does not make the claimant entitled to benefits under Part 36 if the claimant wins the case and is awarded the whole claim, which also the settlement offer was on.
When deciding whether to impose penalties a judge will take into account the sum, time to trial and other circumstances, including whether the party receiving the offer has enough information to make an informed decision.
Part 36 offers must be: in writing, clear that it is a part 36 offer, specify that within a period of no less than 21 days if the offer is accepted, the defendant will pay the claimants costs and whether it related to whole or part of the claim. May be accepted at any time unless notice has been given that it is withdrawn (the 21 day period is somewhat redundant).
If a claimant accepted a defendant’s offer late, the court normally orders that the defendant pays costs up to that date when the period expired and that the claimant pays costs from the expiration to the acceptance.
If a defendant accepts a claimant’s offer late, the defendant will usually be liable to pay the claimants costs until acceptance.
Sum must be paid to claimant within 14 days of acceptance, if not the claimant can enter judgment.
The court has no discretion to make an award of costs between the parties where there has been a valid Part 36 offer
Part 36 offer: effect on costs
Claimant makes part 36 offer, which the defendant turns down and then the defendant
Wins at trial and equals/beats offer: The defendant is faced with penalties including:
Payment of “extra” damages of 10 % extra for damages up to 500 000 and 5% for damages between 500 000 and 1 million, in a maximum total 75 000. Must be paid from 21 days after the part 36 offer was made
Increased interests from 21 days after the offer was made of up to 10% of base rate
Pay claimants costs at an indemnity basis from 21 days after the offer was made
Up to 10% above the base rate of interests on the indemnity costs
Wins at trial but is awarded less than the offer: no extra penalty are imposed
Loses at trial: the part 36 offer has no effect
Defendant makes part 36 offer, the claimant rejects and then the claimant
Wins at trial and equals/beats offer: the part 36 offer has no effect. The claimant’s refusal was just and the defendant will have to pay:
Amount of judgment + interest and
Claimant’s costs at standard basis
Wins at trial but is awarded less than the offer: the claimant will be financially punished for continuing with the claim when they should have accepted the offer. Split cost order:
The defendant pay’s the claimants costs on standard basis from when the costs were incurred until expiry of the 21 day period for accepting the offer
The claimant pays the defendant costs from day 22 after the offer until trial
Interest on the costs - a commercial rate of 1-2% is generally accepted
Loses at trial: claimant is penalized and has to pay interests from day 22 until judgment
Can a non-party be forced to pay costs?
yes, at the court’s discression.
Ways to award costs inter-partes
Standard basis: the receiving party will only receive proportionate costs compared with sums in issue in the proceedings, complexity of the case, work generated and wider factors involved incl. reputation) and any doubt is in the favour of the paying party.
Indemnity basis: any doubt is in the favour of the receiving party and proportionality is not taken into account.
Summary assessment of cost - procedure
“Summary assessment”: procedure, usually after a fast track case, where the court assesses the costs of the successful party after an interim application or a fast track trial, or any other hearing that does not last for more than a day. Form N260 must be served 24 hours before the interim hearing or 2 days before a fast track trial
Detailed assessments of cost - procedure
“Detailed assessment”: the court decides the costs in separate proceedings for multi-track proceedings. If the three months time limit after the order of costs is missed, the court may sanction a party, but the party may still initiate detailed assessments. Payable party has 21 days to dispute, the receiving party has 21 days to reply.
Provisional assessment of costs - procedure
“Provisional assessment”: paper assessment where the costs claimed are less than 75 000. Sealed envelope marked “Part 36 or similar offers” is filed at court and the court tries to undertake a provisional assessment within 6 weeks. An oral hearing may be requested by either party within 21 days after the assessment.
Qualified one way cost shifting (QOCS) of costs.
Since 1. April 2023 in personal injury cases. The claimant does not have to pay the defendant’s costs if the claim fails, but the defendant will have to pay the claimant’s costs if the claim is successful.
Applies to all personal injury and negligence cases except: applications for pre-action disclosure, where the claimant has pre-commencement funding, the claim is fraudulent, if the claim is for the benefit of a third party or the claim has been struck out.
When are cost budgets filed?
7 days before the first case and cost management program.
Which types of proceedings have fixed costs?
Road Traffic Accidents (RTA): fixed recoverable cost regime for RTA cases that settle before the issue of proceedings for up to 10 000.
Low value personal injury claims: up to 25 000
Fast track cases are fixed cost, calculated based on the value of the claim. Fixed costs generally only cover the advocate that prepares and appeals a trial, not the costs for bringing a claim and pursuing the final outcome.
ATE
After the event insurance (ATE):provides insurance for if the client loses and being ordered to pay the opponents costs
BTE
Before the event insurance BTE: covers potential legal costs and a solicitor should always ask client whether they may have BTE
Damages based agreements DBA
Damages based agreements BDSs: type of ‘no win no fee’ agreement governed by Damages Based Agreement Regulations 2013 (DBA Reg).
VAT and counsel fees are not included in the following caps:
No more than 25% of recovered sum in personal injury cases
No more than 35% of recovered sum in employment cases
No more than 50% of recovered sum in non-personal injury cases
OBS: Council fees are included in the damages awarded. If these are covered by the opponent in addition to damages, they must be deducted from the damages to avoid double compensation.
Cannot be used for appeals. Can only be used by defendants pursuing a financial remedy via a counter claim.
Conditional fee agreement CFA
Conditional fee agreement CFA: legal fees are only payable in particular circumstances e.g. client’s claim is successful. Can be with a success fee for the solicitor.
Must be in writing
Cannot cover criminal or family proceedings
Opponents cannot cover success fee
Client must know that the solicitor has an interest in the funding policy
CFA is unenforceable if the solicitor does not investigate whether the client e.g. has insurance first
In personal injury cases, the costs recoverable from claims at first instance is limited to 25% of the damages recoverable by the client. In all other cases, the claimable amount is up to 100%.
Witness summons
Issued by the court. Should be served to witness at least 7 days before hearing. Witnesses must be offered a sum to cover their expenses and compensation for loss of time. Details about witnesses must be given in the Directions Questionnaire
Pre-trial checklist deadlines
On fast and multi-track cases pre-trial checklists/listing questionnaires are used to ensure that the parties have completed all directions. Must be handed to court at least 8 weeks before the trial date.
If neither party complies, the court will order that if the pre-trial checklist is not received within 7 days, both the claim and defence will be struck out.
Judge will review and decide whether further directions are necessary
trial bundle deadlines
Trial bundles: a file of all documents the judge needs to decide on the case. Indexed + paginated + generally no longer than 250 p.
Usually prepared by claimant
Served between 7-3 days before the hearing
Includes key documents such as: claim form and particulars of claim, case summary, requests for information, witness statements, notice of intentions to rely on hearsay evidence, expert reports, directions orders, other necessary documents.
How can priviliged documents be exempted from disclosure
A party can in some instances withhold documents, usually because they fall under the legal professional privilege (privileged documents). They must still be disclosed in the list with a general description, but may not be inspected.
Advice privilege: extends to legal advice given by lawyers, conveyancer and foreign lawyers. The dominant purpose of the document must be to seek legal advice. Commercial advice is not covered.
Litigation privilege: document must be 1. Passing between a lawyer or lawyer and a third party, 2. Came into existence when litigation was ongoing or contemplated, and 3. Produced with a view of litigation
Without prejudice correspondence: information about a party’s genuine attempt to settle the case. Likely to be encompassed by the disclosure. The point is that the trial judge shall be unaware of the content. Disclosure is solely between the parties. To simply mark a document with “without prejudice” is not
Deadlines disclosure
Small claims track: each party shall at least 14 days before the final hearing file and serve everyone with copies of all docs that they intend to rely on at the hearing.
Fast track: order for standard disclosure.
Multi-track: usually standard disclosure, but may also be tailored. The parties must compile a disclosure report, filed and served no less than 14 days before the first CMC and the parties must agree on a disclosure 7 days before the first CMC.
Upon reception of the list, the other party has a right to inspect documents included in Part 1 as long as the request is made in writing and granted within 7 days unless something else is agreed between the parties.
If the opposing party becomes aware that a party has not included all relevant documents in their disclosure, they should
Disclosure - duty to search
parties are required to make a “reasonable and proportionate” search for documents that adversely affect their case or the other party’s case or supports another party’s case.
A search can be limited for documents that existed before a specific date, specify a particular place to search or limit the categories of documents.
Electronic documents include deleted documents as long as there is a storage or backup. The court will give directions regarding disclosure of electronic documents in the CMC.
Pre-action disclosure - procedure
Pre-action disclosure: during pre-action protocols, a party is not required to show the other party contents of documents. This must be required by court order and an application for pre-action disclosure supported by witness statements.
TO grant a pre-action disclosure, the court must be satisfied that the parties are likely to be a part of the proceedings, that the documents would be part of a standard disclosure and that disclosure is desirable for a fair proceedings
Non-party disclosure: a party can apply after proceedings have commenced, if it would help to resolve an issue in the case. Application must be supported by witness evidence and the court must be satisfied that the documents would support the case, and disclosure is necessary for a fair case.
Witness summons
a party must apply to court to serve a witness summons - summoning a witness to a hearing. Witness summons must be effective at least 7 days before trial and only issued with less time to the trial upon approval from the court.
Witness statement
If a party calls a witness for an oral hearing, they must serve a witness statement setting out all the facts that witness will present orally. Without a statement, a witness rarely gets to speak. Must be served at least 3 days before hearing.
Includes: Formalities about witness, numbered paragraphs within the witness statement in chronological order, written in first person and verified by statement of truth.
Confirmed at trial by oath before their oral statement and cross-examination.
Usually exchanged simultaneously. Must be signed by the witness and cannot be signed by legal representative on the witness’ behalf
Witness summaries
Served if a witness statement can’t be obtained e.g. because a witness is abroad. Party must apply to court without notice (as soon as possible) for an order. Witness summaries include name and address, evidence the witness can provide and matters the witness would be questioned about at trial.
Procedure to submit hearsay evidence
A statement made outside of court, repeated in court to provide the truth of a matter. The reason is to prove the truth of words said.
Must give the other party the statement if a witness will be providing hearsay evidence. It us then up to the opponent to decide whether the maker of the original statement must attend the hearing or serve note of intention to attack the hearsay evidence.
A witness witnessing about hearsay cannot be cross-examined (can apply to court)
Admissible, but considered “second best” evidence, as it cannot be ruled out that what was heard was a lie. The court must take into account whether the person behind the original statement should be called, whether the witness has the statement fresh in memory, if there are multiple hearsays and a risk of mishearing, a motive to misrepresent, whether the original statement was edited or whether hearsay is an attempt to avoid the proper weight of the evidence.
Expert evidence deadlines and procedure
A deadline will be imposed by the court to exchange expert reports, after which each party has 28 days to ask clarifying questions. Answers will be part of the report.
The court will usually order a “without prejudice discussion” between the experts without the parties where the content is not shared, to narrow down the issues. Legal council may only join such without prejudice discussions if the court gives permission or the experts and parties agree.
Expert evidence includes their qualifications, literature relied on, conclusion and verification by statement of truth
Experts in fast track procedures:
Written reports are exchanged simultaneously
Costs are shared
Evidence is solely written report
Multi-track
Written reports are exchanged simultaneously
Each party has 28 days to ask written questions to the expert
A without prejudice discussion is held
Written joint statement summarizing issues
Oral evidence at trial
discussion between experts
Costs budgets and when provided
must be provided by the parties in multi-track proceedings.
Includes incurred costs and estimated future costs.
Must be filed with the directions questionnaire of the claim is for less than 50 000 GBP or no later than 21 days before the first CMC in all other cases
Failure to file cost budget on time will be treated as if the party only filed a cost budget consisting of a court fee
Extremely difficult to amend once approved
Cost management order
Costs management order: the court records which costs are incurred or budgeted and agreed between the parties and which costs are not agreed. The effect is to control the party’s budgets.
If there is no cost management order and the costs claimed are more than 20% higher than those in the cost budget, that party must send in a statement to explain why the costs deviate.
Can a party apply straight to court for sanctions if the other party does not comply?
should first try to approach the party.
Track allocation - difference between tracks
Small claims track: less than 10 000 GBP
Typically consumer disputes, ownership of goods, landlord - tenant
Allows for litigation in person and parts of CPR regarding disclosure, inspection, evidence and experts do not apply.
Fast track: between 10 001 - 25 000 GBP
No longer than 1 day hearing
Differences from Multi-track: standard and not tailored directions, limited expert witnesses, no longer than 1 day and limited power to award costs.
Multi-track: more than 25 000 GBP
The court usually gives directions regarding case management and sets a time table for steps towards trial
Case management conferences (CMC) for complex cases: review steps taken to prepare the case so far, check that the parties have complied with directions from the court and consider future directions.
OBS if a case is less than 25 000 but require expert evidence and more than one day hearing, it can be allocated as multi-track in the county court.
How are courts allocating cases to tracks? what is decision based on?
Directions questionnaire: a key document used by the court to confirm allocation. Sent out by court after defence is filed. The parties must cooperate in order to fill it out. Contains information about attempted settlements, experts, witnesses, costs and so on. Must be completed and serviced within 28 days of the deemed date of service of the Notice of Proposed Allocation.
Failure to file directions questionnaire may lead to:
Claim for money in the county court: court serves a notice with a 7 day deadline. Failure to deliver the directions questionnaire within the 7 days leads to the statement of case (Sets out the facts of the case) being struck out.
All other cases: The court is free to make an order and e.g. order a case management conference or strike out the statement of case.
Interim appliations procedure
Made by using:
using Form N244 under part 23. Verified by statement of truth (signed by either party or legal council)
+ Witness statement stating why the order is sought
+ draft order, except for in very simple cases
Deadline for applications with notice: must be served to the opponent at least 3 full days before the court hearing (excluding date of the hearing and date of the service). can be served without notice if it is e.g. exceptionally urgent, but then with evidence of e.g. why notice is not given.
Summary judgement - procedure
Enables a party to bring a matter to an early conclusion if the other defence/claim received is so poor that the defendant has:
No real prospects of success for either party AND
There is no compelling reason why the case should go to trial (normally time to investigate, complicated/Technical or need for witnesses are compelling)
Can be requested by either party at any time. Must be permitted by the court if filed before the defendant has filed an acknowledgement of service or a defence.
Application N244 + witness statement
Timeline:
Applicant files + serves N244 + witness statement at least 14 days to the hearing
Respondent file + serve written evidence at least 7 days before the hearing
Applicants can serve evidence until 3 days before the hearing.
What is a part 20 claim?
Part 20 claim = counterclaim
Handed in with defence and “defence and counterclaim”
Permission is not required from the court, unless defence has already been filed
Defence to counterclaim
Normal deadlines for a defence: 14 days after the counterclaim , unless a 28 day extension has been agreed.
If no defence is filed, the claimant can ask for a default judgment for the counterclaim
What is a statement of case and can it be amended?
Formal documents where the parties set out their cases, including:
Claim form
Particulars of claim
1. Contract and negligence
Status of praties
Existence of contract + terms
Alleged breach
Consequence
Alleged damages
Interest (must be claimed to be awarded). OBS for negligence, the court has a general discretion to award interests on damages in negligence cases
Summary of relief (remedies)
Statement of truth
Defence
Formalities (name, case number etc.)
Whether limitation period is upheld
Relevant proof
Party can file part 18 requests, served in writing and allow for reasonable time to respond to request more information about statement of case. The request should be concise and confined to what is reasonably necessary and proportionate. Response must be served to all parties, filed with the court and verified by a statement of truth
After filing, but before service: amendments may be made at any time
After filing and service: an amendment can only be made with written consent of all parties or permission from the court
Amendment after the expiry of the limitation period is only allowed if:
A new claim can be added or substituted of this arises out of the same or substantially the same facts as an existing claim
To correct a genuine mistake e.g. name
Default judgement
If the defendant does nothing within the deadlines above, it may be faced with a default judgment. If the claim is for a specific sum, claimant must indicate:
Payment date
Interests
Daily interest rate
Default judgment for unspecified sums:
A disposal hearing is needed to decide the amount of damages
Default judgments may be set aside on mandatory and discretionary grounds:
Mandatory grounds: when it is wrongly entered into, e.g. too early
Discretionary grounds: the court has the power to set aside a judgment where the defendant has real prospect of success with the claim or there are other good reasons why the defendant should be allowed to defend the claim (e.g. on holiday. Workload or misplaced docs are usually not enough).
Jurisdiction - how to determine + deadlines
Jurisdiction depends on:
- Defendant’s domicile
- Date the proceedings were instigated (before 31 December 2020, courts of E&W had jurisdiction under the European rules if the defendant was domicile in E&W. After 1 january 2021: must follow Hague Convention.
Application for permission to serve proceedings outside of E&W must be made. Requires evidence of a connecting factor between the claimant + E&W and will be refused if the court does not think E&W is the right forum.
A party receiving a claim form must file an acknowledgement of service and this must include whether the jurisdiction is disputed. After the acknowledgement is filed, a party has 14 days to challenge the jurisdiction. This challenging method is also used for DEFECTIVE SERVICE
If it is not challenged, this will count as an acceptance.
If the court refuses the dispute, the defendant must file another acknowledgement within 14 days.
The deadline for filing a defence
When receiving the particulars of claim, the defendant must within 14 days after service:
Admit whole or part of the claim
File an acknowledgement of service and thereafter file a defence within 28 days of the service of the particulars of claim
File a full defence
Ignore proceedings → judgment by default
The deadline for filing a defence may be extended by a maximum of 28 days, upon agreement between the parties. The defendant will then have in total 56 days to file the defence: 14 + extended 14 + agreed additional 28.
If a defence is filed, the court serves all parties with a copy
If responding to a claim where the claimant has served the claim for to a defendant in an EU country, the defendant must send an acknowledgement of claim within 21 days after receiving the particulars of claim - VS the regular 14 day deadline
When are claim formes and particulars of claims deemed served
Deemed service: when the document is considered as arrived - here when the defendant will be considered to have received the claim form.
Claim form: Indisputable presumption that the claim form was received on the second business day after the step required has occurred. Business day does not include Saturday, Sunday, bank holidays, Good Friday and Christmas Day
Particulars of claims can be served with the claim form or separate. If served with the claim form it is considered served as above. If served separately, it must be served within 14 days after the claim form (no later than 4 months after the date of issue if the claim form). OBS the 14 days are hence counted from the delivery of the claim for until service of the particulars of claim.
Outside jurisdiction: 21 days and 6 months.
