Dispute Resolution Flashcards
What is the shortest period a party may give the other side to accept a Part 36 offer?
21 days
A solicitor recommends to their client that alternative dispute resolution may assist in settling the case without litigation. The client is particularly interested in mediation and arbitration. The client asks the solicitor to explain the difference between the two.
Although mediation and arbitration both involve resolving disputes with the help of a neutral third party, in mediation, the mediator does not impose a solution, but rather helps the parties find their own solution; whilst in arbitration, the arbitrator does resolve the dispute
A solicitor represents a company in a breach of contract action against one of its suppliers. After attempting to settle the case, the solicitor initiates a claim in the High Court against the supplier. A trial is held, and the company loses the case. The company believes the judge made some serious procedural errors and would like to appeal.
Which court would have jurisdiction to consider the appeal?
Court of Appeal
There is no appeal from one High Court Judge to another High Court Judge
A woman hired a solicitor to issue a nuisance claim against her neighbour, alleging the neighbour repeatedly played music so loud that the woman could no longer enjoy her garden. The solicitor attempted to settle the dispute amicably, but the parties refused. As the claim was for only £2,000, had taken up a lot of the solicitor’s time, and was of very questionable merit, the solicitor pushed the matter aside until the woman called to ask how the claim was progressing. The solicitor then discovered the limitation period had expired.
The solicitor informed the woman that the limitation period had expired. In response, the woman instructed a different solicitor to issue proceedings against her former solicitor for negligence. The claim specifically alleges that (i) the defendant was negligent in missing the limitation period, (ii) but for the negligence, the woman would have won her case, and (iii) her losses are £25,000 damages exclusive of interest and costs.
The woman’s former solicitor hires you to defend the claim. The former solicitor admits to you that they forgot about the limitation period but is adamant that the nuisance claim was speculative and highly unlikely to succeed.
How should you draft the defence?
You should admit liability for negligence, neither admit nor deny causation, and deny the allegation of damages.
A defendant may defend a claim by asserting a procedural defence (such as lack of jurisdiction or expiration of the limitation period), negating one of the elements of the cause of action, or disputing the damages. In any case, the defence must be truthful - they must admit allegations that are true, but may deny allegations they believe are false, and say that they neither admit nor deny (that is, issue a non-admission regarding) allegations that are not within their personal knowledge. Here, the defendant has admitted that they were negligent in missing the deadline. Therefore, there is no choice but to admit that in the defence. However, as the defendant believes causation is speculative (that is, they think the former client’s claim was unlikely to succeed in any case), it is not advisable to deny this allegation as it is a hypothetical fact and the defendant cannot therefore categorically say that it is incorrect. On the other hand, the defendant can deny the allegation that the claimant suffered £25,000 damages exclusive of interest and costs, as the original claim was for only £2,000.
It is never appropriate to issue a blanket denial - allegations must be admitted or denied individually.
A young man aged 20 was killed instantly in an accident caused by the negligence of the defendant. Because he died instantly, he suffered no pain. There was no damage to any of his property and he suffered no loss of earnings. He was unmarried and left no dependants but was survived by his parents.
If an action in tort is brought against the defendant in respect of the accident which killed the young man, what is the likely outcome?
There can be no successful claim because the man has not suffered any actionable damage.
A client wishes to make a claim against his former solicitor for professional negligence. The client’s current solicitor sends a letter of claim pursuant to the Professional Negligence Pre-Action Protocol. The former solicitor responds with an offer to engage in alternative dispute resolution. However, the client refuses the former solicitor’s offer. Instead, the client instructs the current solicitor to issue proceedings before the end of the protocol period.
What is the consequence of the client’s failure to follow the pre-action protocol?
They may, even if successful in the claim, be ordered to pay some or all of the former solicitor’s costs.
Costs are the appropriate sanction for a party who does not comply with a pre-action protocol.
The court has no power to reduce the damages as a sanction for conduct in litigation
The court has no power to order a percentage of damages to be paid over
The court has no power to order a party to attend ADR.
A property development company built a city centre development, incorporating shops and residential properties. The development was completed on 1 August 2010. Under the terms of the lease, obligations to maintain the residential part of the structure then passed to the residential management company.
On 26 February 2021, a large crack appeared in a wall in one of the apartments of the building. Investigations suggest that the crack has been caused by faulty workmanship dating back to construction of the property building. The residential management company is considering making a claim against the developers.
What is the limitation period in relation to the management company’s claim against the developer?
Any time before 26 February 2024
The Latent Damage Act 1986 provides that a claim can be brought within 6 years of the date of accrual or 3 years from the earliest date on which the claimant knew, or reasonably ought to have known, material facts necessary to bring an action alleging negligence (the starting date). Here, the negligence will be deemed to have accrued at the completion of the project (1 August 2010). Six years from the date is 1 August 2016. But instead, the management company can rely on the 3 year period. The management company learned of the negligence on 26 February 2021. 3 years from that date is 26 February 2024.
The Latent Damage Act longstop period is 15 years and is measured from the date of accrual not the date of discovery. That is the latest date a claim may be brought no matter when the negligence is discovered.
A solicitor intends to issue court proceedings for damages for breach of contract. The claim is worth less than £50,000.
How should the claimant start the proceedings?
The solicitor should send the claim form to the Civil National Business Centre (CNBC) at Northampton to issue the claim form.
A dental patient is the victim of malpractice. Because of negligent treatment provided by a dentist, the patient required four crowns. Because the patient is 23 years old, the crowns will need to be replaced several times throughout the patient’s life.
The patient instructed a solicitor to issue a claim against the dentist. The solicitor calculated present and future damages for the cost of the crowns and the time the patient will need to take off from work at about £47,500. The claimant also suffered some pain, but she is averse to claiming compensation for that and instructs the solicitor not to include it. Without the claim for pain and suffering, the solicitor estimates damages at about £60,000, including interest and costs. The solicitor issues proceedings in the County Court.
To which track will the court likely allocate the case?
Multi-track.
The small claims track is for cases involving less than £10,000 (or personal injury claims for less than £1,000). The fast track is used for cases of more than £10,000 (or more than £1,000 for personal injury claims) and up to £25,000. Claims for more than £25,000 are allocated to the multi-track.
The County Court Money Claims Centre handles debt claims and does not handle cases for damages
The High Court usually does not hear cases involving less than £100,000 or where the claimant does not expect to recover at least £50,000 for a personal injury.
A party serves notice that they propose to rely upon hearsay evidence at trial. At the hearing in accordance with the notice, they adduce evidence from a witness whose signed statement they have served, but who is not present in court and cannot therefore be cross-examined or confirm that the contents of their statement are true to the best of their knowledge and belief.
What is the approach that the court will take in determining the weight that they should apply to the hearsay evidence?
The three points the court will consider when determinign the weight to apply are: whether it would have been reasonable or practicable to force the witness to attend; whether the witness made the statement contemporaneously; and whether there was any motive to misrepresent or conceal facts.
The court will also consider whether the case involves ‘multiple hearsay’, whether the original statement was edited and whether there can be any suggestion that the events leading to the evidence being presented as hearsay evidence constitute an attempt to prevent proper evaluation as to its weight.
The court will take no steps to adjourn a hearing of its own accord.
The defendant in a commercial breach of contract claim is ordered to pay the claimant’s costs on the indemnity basis. One item of costs is related to the claimant attending two conferences with counsel to advise on liability and quantum in the claim. The defendant wishes to object on the basis that the solicitor should have been capable of giving this advice himself and, if not, only one conference with counsel was required.
What is the test the judge will apply to determine whether the defendant should pay the costs of the conferences?
The cost is recoverable so long as the judge is satisfied it was reasonably incurred and is reasonable in amount, with any doubt resolved in favour of the claimant (indemnity basis: reasonably incurred, reasonable in amount, and doubts resolved in favour of the party receiving the costs).
A claimant brings a negligence action against a sole trader for injuries the claimant sustained within the sole trader’s store. Negotiations and alternative dispute resolution did not yield a settlement or resolution to the case. The defendant then made an application to strike out, arguing there was no case to answer. The court rejected the application, finding that the claimant had made a prima facie case for recovery. The case is now about to go to trial.
What is the burden of proof in this case?
The claimant must prove their claim on the balance of probabilities.
A solicitor is representing a client in a personal injury claim. One of the issues relates to the extent to which the claimant’s broken bones will heal. The court has allowed each party to hire their own expert on the matter. The solicitor for the claimant hires an orthopaedic expert to examine the claimant’s medical record and give an opinion.
Does the report the solicitor receives from the orthopaedic expert have to be disclosed?
The expert’s report must be disclosed to the defendant if the claimant intends to rely on it and it will lose its privilege.
A defendant has failed to file an acknowledgment of service to a claim within 14 days of service of the Particulars of Claim, and the claimant has now entered judgment. The defendant intended to dispute the claim and it was only through administrative oversight that they failed to file a defence in time. They make an application to set aside the default judgment.
What are the factors that the court will take into account in determining whether to grant the defendant’s application?
Whether the defendant has a real prospect of successfully defending the claim and there is some other good reason why the judgment should be set aside.
A luxury hotel secures a judgment for £300,000 against one of their former directors. The hotel has heard from a reliable source that the director is in the process of converting all of his assets into cash to move to another country, where he owns a second home.
What should the hotel do to ensure it can enforce its judgment?
Apply for a freezing injunction. A freezing injunction is a prohibitory injunction that prevents a person from disposing of the frozen assets. They are granted when the party applying for the injunction can show that the person to be enjoined may dispose of assets the applicant has a right to.
Issuing a statutory demand will put the director on notice that the hotel is seeking to enforce judgment and give him more time to dispose of his assets.
