dispute resolution Flashcards
what is the limitation period of contract claims
6 years from the date the cause of action accrued
what is the limitation period of tort claims
6 years from the date the tort was committed
what is the limitation period of PI claims
the latest between:
- 3 years from cause of action
- 3 years from date of knowledge of cause of action
- 3 years from victim’s 18th birthday
maximum 15 years in negligence
what is the aim of pre=action procedure
to initiate and increase pre-action contact between parties
what is the time frame for responding to a letter before claim
14 days, or a max of 3 months for complex claims
what are the consequences for non-compliance with pre-action procedure
- costs ordered on indemnity basis
- deprivation or increased rate of interest
where should a claim below £100,000 be commenced
in the county court, unless PI claim then only if below £50,000
what documents are submitted to issue a claim
a. claim form
b. particulars of claim
c. any annexed documents
when must a claim form eb served
within 4 months of issue (6 months if serving out of jurisdiction)
when is a claim form deemed served?
on the 2nd business day after the required step
when are all documents other than claim forms deemed served
if by first class post or DX: on the second business day after the required step
all other methods: if served before 4.30pm, on the day. if after, the following day.
when must a defence be filed in response
within 14 days of service, or file an acknowledgement of service and extend to 28 days
on what grounds may a default judgement be set aside
- mandatory ground:
a. where the judgment was wrongly entered - discretionary ground
a. defendant has real
prospect of successfully defending claim; or
b. there is some other good
reason to proceed to trial
what is a tomlin order
an order which stays a claim on agreed terms and allows some terms to remain confidential
what can be included in statements of case
only statements which are properly arguable
when can you amend a statement of case within the limitation period?
before service at any time, after service with the consent of all parties OR the court
when can you amend a statement of case after the limitation period?
at the court’s discretion:
a. to add or substitute claim arising from the same facts
b. to correct a genuine mistake as to name
c. to alter the capacity in which a party claims
what is the general approach to interim applications
that parties should seek to resolve them amongst themselves before applying to court
when must interim application notice be served
at least 3 clear days before the hearing
what are the rules for an interim application without notice
- draw the court’s attention to any arguments the respondent may want to make
- after order is made, explain to respondent the reason for no notice and serve on them the evidence
what is a summary judgment
a judgment enabling a party to bring the case to an early conclusion
when may summary judgment be awarded
a. where the court considers that
i. the claimant has no real prospect of succeeding
ii. defendant has no real prospect of successfully defending ; and
b. there is no other compelling reason to dispose of case at trial
how much notice must a respondent have for summary judgment hearing
14 days
when will a court grant an interim injunction
if the matter is urgent or it is otherwise desirable in the interests of justice
what is a breach of an interim injunction
contempt of court
what will the court consider in an interim injuction
- is there a serious question
- are damages appropriate
- is the balance of convenience in favour or against
- are there any special factors
what is a cross-undertaking
where the applicant agrees to pay any costs incurred by the respondent from a wrongly awarded injunction
when must notice be served for an interim payment
14 days before hearing date, and any counter evidence 7 days before
what are the grounds for awarding an interim payment
a. D has admitted liability
b. claimant has obtained judgment for a sum of money
c. court is satisfied that claimant would obtain a substantial sum at trial
when must a directions questionnaire be filed
once the court has provisionally allocated a case. parties should consult and cooperate.
what is the sanction for failing to file a directions questionnaire
the court will serve a notice on the party. failure to comply within 7 days results in their claim being struck out.
what is allocated to small claims track
claims below £10,000
what is allocated to fast claim track
over £10,000 up to and including £25,000, where trial is expected to last no longer than a day. single joint expert usually procured.
what is allocated to multi-track
claims over £25,000. CMC will usually be ordered
what are the consequences of failure to comply with court directions
the other parties may apply for enforcement or a sanction
what should a costs budget contain
a detailed breakdown of incurred and estimated costs
what are the consequences of not filing a costs budget
you are treated as having filed a budget consisting only of court fees
when is a witness required to give oral evidence
when a fact in the statement is relied on by a party
what is the procedure for witness statements
any evidence included must be relevant and it must be served on all other parties
when is opinion evidence admissible
- when it is facts personally received
- expert evidence
what is hearsay evidence
a statement repeated in court to prove the truth of the matter (not to disprove truth)
when is hearsay evidence admissible
when the opposition has been served with the statement. they may choose to cross-examine the hearsay witness.
when is expert evidence admissible
when it is reasonably required to resolve relevant issues. parties have 28 days to put questions to expert before trial.
what is standard disclosure
must disclose:
a. documents on which a party relies to prove their case
b. documents which adversely affect their case, adversely affect another party’s case or support another party’s case
what is the duty under standard disclosure
to make a reasonable and proportionate search for all documents liable to be disclosed
what is contained in part 1 of standard disclosure
documents within the party’s control to which they do not object inspection
what is contained in part 2 of standard disclosure
documents within the control of the party which they object to inspection of
what is contained in part 3 of standard disclosure
documents no longer in the control of the party. court may order non-party disclosure to obtain these.
what is advice privilege
communication where the sole or dominant purpose was to seek or give legal advice
what is litigation privilege
a document passing between a client or their lawyer and a third party produced in contemplation of litigation
when must a witness summons be sought
if there is any doubt about the attendance of a witness. must be served 7 days before hearing. if late, requires court permission.
when may a civil case be appealed
a. there is a real prospect of success; or
b. there is some other compelling reason why the appeal should be heard
what is required when appealing to court of appeal or supreme court
an important point of principle or practice must be raised
how long does a party have to appeal a county or high court judgment
21 days
how long does a party have to appeal a court of appeal judgment
28 days
what is summary assessment of costs
where the court determines costs orders immediately following the end of the hearing
what is a detailed costs assessment
the receiving party will serve notice within 3 months of the judgment with their assessed costs. the opposition has 21 days to dispute any costs.
what are costs ordered on the standard basis
- any doubt resolved in favour of paying party
- costs must be reasonable and proportionate
what are costs ordered on the indemnity basis
- any doubt resolved in favour of the receiving party
- costs must be reasonably incurred and reasonable in amount but not proportionate
what are non-party costs
where a court is satisfied that a 3rd party is the actual interested party, they may be ordered to meet costs
what is the acceptance period for part 36 offers
21 days
what happens if D refuses a claimant’s part 36 offer
if claimant wins equal or higher payment: D pays heightened interest and costs on indemnity basis from day 22
if claimant loses or is awarded lower: no effect
what happens if C refuses defendant’s part 36 offer?
if D wins: C pays costs plus interest from day 22 at 1-2% higher than base rate
if D loses and cost beaten: no effect
if D loses and cost not beaten: D pays standard costs up to day 21, C pays standard costs from day 22
what is investigation the means of a debtor
party instructs an inquiry agent OR applies for order to obtain information where debtor is questioned under oath
what is taking control of goods as enforcement
where creditor seizes debtor’s possessions of equivalent value to the debt and sells them at auction.
entry to home cannot be forced.
must leave up to value of £1,350 of essentials for home and work
what is a charging order
where the creditor takes a charge over a debtor’s assets if they lack liquid assets.
on jointly owned land, the charge is over the beneficial interest.
how does a party enforce a money judgment awarded in the high court?
issue a writ of control
how does a party enforce a money judgment awarded in the county court?
less than £600 - warrant of control in CC
between £600 - £5,000 - CC or HC. warrant or writ
£5,000 plus - HC writ of control
how can a creditor get money from a charging order?
by applying to court for an order of sale
what is a third party debt order
where a creditor takes control of debt owed to the debtor. the debt must be theirs solely and beneficially. this is done as a surprise.
what is an attachment of earnings
compels debtor’s employer to make regular deductions to pay off creditor. ceases when debtor moves jobs.
