Dispute Resolution

Question 1

When can alternative dispute resolution not be attempted?

Answer 1

• It is obviously inappropriate.
• One party is unlikely to cooperate.
• One party cannot be trusted to comply with an award/decision.

Question 2

What must be done if the parties are not attempting ADR?

Answer 2

Serve a witness statement giving reasons why ADR is not suitable within 21 days of the proposal not to use ADR.

Question 3

Can the court impose a costs sanction on a party refusing to attempt ADR?

Answer 3

Yes, but only if the refusal is unreasonable.

Question 4

What is mediation?

Answer 4

An independent third-party who acts as a go-between.

The mediator assesses the areas of disagreement and helps the parties to come to constructive solutions.

Question 5

What are the advantages of mediation?

Answer 5

• Privacy - not public - limits damage to reputations.
• Cost effective and fast compared to litigation/arbitration
• Flexible - no legal requirements to comply with.
• Ability to withdraw at anytime.

Question 6

What are the disadvantages of mediation?

Answer 6

• Lack of public vindication as done in private.
• Risk other party walking away with no solution.
• The conclusion reached is not binding.

Question 7

What is arbitration?

Answer 7

Independant third-party elected by the parties. Substitute for litigation. More formal than mediation.

Once the parties have agreed to arbitration, they cannot then take advantage of the normal court process.

Question 8

What are the advantages of arbitration?

Answer 8

• Quicker than going to court
• Takes place privately.
• The decision is binding on all parties and the successful party can enforce the solution.

Question 9

What are the disadvantages of arbitration?

Answer 9

• Certain remedies are not available (injunctions)
• Limited rights of appeal.
• Barred from litigation.

Question 10

What is litigation?

Answer 10

The act of attempting to resolve a dispute through the court system.

Question 11

What is the effect of limitation?

Answer 11

If the claim is not settled or court proceedings issued before the claim’s limitation date, the defendant will have a defence to the claim.

If the court agrees, the claimant will lose their right to compensation for the incident.

Question 12

What is the limitation period for claims in tort and contract? (not including PI claims)

Answer 12

6 years from the date of the cause of action. (Date on which the breach of contract/breach of duty occurred).

Question 13

What is the limitation period for personal injury claims?

Answer 13

Basic rule: 3 years from the date of the accident.

Minors: the 3 year period does not start until they turn 18. Therefore, limitation expires on their 21st birthday.

Question 14

What is the limitation period for claims founded in negligence where the damage is hidden?

Answer 14

• 6 years from the date of the cause of action.
• 3 years from the date of knowledge of the damage.
• No later than 15 years after the date of the negligent act or omission.

Question 15

Can parties to a contract edit the limitation period?

Answer 15

Yes, but they cannot extend the limitation period. They can only reduce it.

Question 16

What is the purpose of damages in a breach of contract claim?

Answer 16

The damages put the claimant in the position they would have been in, had the contract been properly performed.

E.g., The contract stipulated that the claimant be paid in full once the goods had been delivered to the defendant but the defendant fails to pay the full amount.

Damages in this scenario would be for the claimant to receive the money they were due on delivery.

Question 17

What is the purpose of damages in a negligence claim?

Answer 17

Damages put the claimant in the position they would have been in had the negligent act not occurred.

Question 18

What is the purpose of damages in a nuisance claim?

Answer 18

Damages put the claimant in the position they would have been in had the nuisance not occurred.

Question 19

What is the purpose of damages in a misrepresentation claim?

Answer 19

Damages put the claimant in the position they would have been in had the misrepresentation not occurred.

Question 20

What documents are included in a statement of case?

Answer 20

• Claim form
• Particulars of Claim
• Defence

Question 21

What should a solicitor do if their client admits that there is a material error in their statement of case?

Answer 21

1) Advise the client to amend the statement of case.

2) If the client refuses, the solicitor should cease to act on their behalf as in doing so, they would be breaching the SRA’s code of conduct.

3) Due to client confidentiality, the solicitor should not inform the court or the opponents of the error or their reason for ceasing to represent the client.

Question 22

What is the deadline for service of the Particulars of Claim after the claim form has been served?

Answer 22

14 days.

Question 23

What is the deadline for service of a claim form once it has been issued?

Answer 23

4 months.

Question 24

What should the Particulars of claim include?

Answer 24

PARS for breach of contract/duty:

1) The status of the parties
2) Existence of contract/duty
3) Terms of the contract (express and implied)
4) Breach alledged
5) Factual consequences of alledged breach.
6) Damage and loss alledged and detailed.
7) Whether interest is claimed for.
8) Summary of remedies claimed.
9) Statement of truth signed by the Claimant.

Question 25

What must the defence contain?

Answer 25

The defendant’s response to the claim:

• deny liability
• admit liability
• liability not admitted

Where liability is denied, the defence must state the defendant’s reasons for doing so and state their own version of events.

Question 26

What is the deadline for service of a defence once the particulars of claim have been served?

Answer 26

14 days after service of the PARS.

28 days after service of PARS if an acknowledgment of service is filed at court.

The defendant and claimant can agree an extension to this period.

Question 27

What is a counter claim and when is it served?

Answer 27

Where a defendant brings their own cause of action against the claimant.

The counter claim should be filed with the defence (the defence and counter claim are usually contained in one document)

Permission is required from the court if the defendant wishes to submit a counter claim after they have filed a defence.

Question 28

When must a claimant file a defence to the defendant’s counterclaim?

Answer 28

14 days after service of the counter claim.

Question 29

Can statements of case be amended after the expiry of limitation?

Answer 29

Only with the court’s permission.

• To correct a genuine mistake.
• To alter the capacity in which the party claims.

Question 30

What is a Part 18 request?

Answer 30

Request for further information where the statement of case is confusing or not precise enough.

Question 31

When can a Part 18 request be made?

Answer 31

At anytime.

The requesting party must:

1) Serve a written request upon the other party and allow reasonable time for a response.

2) The document must make it clear that it is a Part 18 request.

Question 32

What is an interim application?

Answer 32

Where a party asks the court to do something or authorise something.

E.g., to request more time to serve a claim form/defence.

Question 33

What is the procedure for applying for an interim application?

Answer 33

1) Parties should always try to resolve matters between themselves before applying for an interim application.

2) The application must be made to the court where the claim started/has been transferred.

3) The application notice must make it clear what is being requested and why. It must be verified with a signed statement of truth.

4) A draft order should be included to assist the judge.

Question 34

When should the application notice for an interim application be served?

Answer 34

No later than 3 days before the court is to deal with the application.

Question 35

What is a consent order?

Answer 35

Where both parties reach an agreement on the order they require and apply to the court with a consent order.

Question 36

Should you notify your opponents of your intention to apply for an interim application?

Answer 36

General rule = yes, UNLESS:

• There is exceptional urgency
• It makes no sense to provide notice - interim application to search the opponents property - if notified, the opponent could hide items.

Question 37

When should an application notice without notice be served?

Answer 37

As soon as possible.

Question 38

How long does the opponent have to apply to set aside the interim application?

Answer 38

7 days from service of the application notice/court order.

Question 39

Who pays for the cost of the interim application?

Answer 39

Applicant successful = the respondent pays the applicant’s costs (issue fee)

Applicant unsuccessful = applicant recieves no costs from respondent.

Question 40

What is a summary judgment and when is it used?

Answer 40

Where the judge reaches a decision without the need for a full trial.

Where the claim/defence put forward is particularly weak and the court considers that:

• The claimant has no real prospect of suceeding; or
• The defendant has no real prospect of defending the claim.

AND

There is no compelling reason why the claim should be dealt with at a full trial.

Question 41

What is the procedure of applying for a summary judgment?

Answer 41

Either the claimant or the defendant can apply for a summary judgment.

• The applicant applies by sending in an N244 form and an accompanying witness statement.
• The respondent must be given 14 days of the hearing date.
• The respondent must file and serve any written evidence at least 7 days before the hearing
• If the applicant wishes to submit more written evidence, this must be filed and served no later than 3 days before the hearing.

Question 42

What orders can a judge make following a summary judgment hearing?

Answer 42

a) Claimant has succeeded - matter will proceed to enforcement

b) Defendant has succeeded - the claim comes to an end

c) Application fails - claim proceeds to trial

d) conditional order

Question 43

What are the cost consequences for a summary judgment?

Answer 43

a) claimant succeeds - summary judgment for a specified sum - fixed costs as per part 45

b) claimant succeeds - summary judgment for an unspecified sum - claim proceeds to a disposal hearing.

c) defendant succeeds - claim is struck out and claimant pay the defendant’s legal costs.