Dispute Resolution Flashcards

Question 1

Q

METHODS OF DISPUTE RESOLUTION

1.1a What are the 4 primary processes for resolving disputes

Answer

A

Litigation
Negotiation
Mediation
Arbitration

Question 2

Q

METHODS OF DISPUTE RESOLUTION

1.1a
Explain the characteristics of LITIGATION which make it an appropriate mechanism to resolve a dispute.

Answer

A

LITIGATION
Governed by the Civil Procedure Rules
o expensive
o time consuming
o should be a last resort
1. involuntary
2. legally binding judgement which can be enforced against other party
3. Decision maker may not have subject matter expertise
4. Formal procedure
5. Strict rules of evidence
(ws / experts)
6. Outcome imposed
7. Public
.

Question 3

Q

METHODS OF DISPUTE RESOLUTION

1.1b
Explain the characteristics of NEGOTIATION which make it an appropriate mechanism to resolve a dispute.

Answer

A

NEGOTIATION
o Correspondence, meetings or telephone calls to try to negotiate a settlement
o can happen at any time pre or post litigation
o Can be WP = they cannot be relied on by the other party / referred to in court
o Enables parties to explore opportunities to resolve without concern it will be used against them.

Question 4

Q

METHODS OF DISPUTE RESOLUTION

1.1C
Explain the characteristics of MEDIATION which make it an appropriate mechanism to resolve a dispute.

Answer

A

MEDIATION
o most common form of ADR
1. Voluntary process
2. Agreement enforceable by contract
3. Chosen 3rd party with subject matter expertise
4. Informal procedure
5. Unbounded presentation of evidence
(can bring up hurt feelings, distrust etc.)
6. Mediator does not impose a solution, but helps the parties find their own solution
7. Private
Advantages:
Cost, speed, privacy, preserve business relationship, commercial reality
Disadvantages:
Limited disclosure, enforcement not automatic

Question 5

Q

METHODS OF DISPUTE RESOLUTION

1.1d
Explain the characteristics of ARBITRATION which make it an appropriate mechanism to resolve a dispute.

Answer

A

ARBITRATION
o In arbitration the arbitrator resolves the dispute
1. Often contractual requirement
2. Final award binding
3. Specialist arbiter
4. Formal procedure
5. Strict rules of evidence
(statements of case, written submissions, docs)
6. Outcome imposed
7. Private
Advantages:
Cost, speed, privacy, preserve business relationship, commercial reality
Disadvantages:
Limited disclosure, some remedies not available.

Question 6

Q

METHODS OF DISPUTE RESOLUTION

1.2 What is Alternative Dispute Resolution (ADR)

Answer

A

Broad label given to methods of resolving disputes other than through litigation
o Negotiation
o Mediation
o Arbitration
Parties must consider ADR at all stages.

Question 7

Q

METHODS OF DISPUTE RESOLUTION

1.4 PAP requires the parties to consider a form of Alternative Dispute Resolution (ADR) to assist with settlement

Answer

A

o Litigation should be a last resort.
o the parties may be required by the court to provide evidence that ADR has been considered

Question 8

Q

METHODS OF DISPUTE RESOLUTION

1.5 Failure to engage in ADR

Answer

A

A solicitor should discuss with the client the availability of ADR.
A party’s silence or a refusal to participate in ADR:
o might be considered unreasonable by the court and
o could lead to the court ordering that party to pay costs sanctions UNLESS THEY CAN JUSTIFY TO THE COURT.

Question 9

Q

2.0 SRA
1. OVERVIEW OF CIVIL LITIGATION

Answer

A

Preliminary Considerations
Commencement of Action
Interim Matters
Trial
Post-Trial

Question 10

Q

2.0 SRA
2. Preliminary considerations:

Answer

A

i. Can a claim be brought at all?
ii. Who are the parties?
iii. Does D have means to pay?
iv. merits of the case?
v. Causes of Action
vi. What steps must be taken before proceedings issued?

Question 11

Q

PRE-ACTION CONSIDERATIONS

2.1-2
What is a Limitation Period?

Answer

A

o Limitation Act 1980 sets the strict time limits for bringing actions of the various classes.
o if these are missed the claim will be statute barred
= D will have a technical defence to the claim.

Question 12

Q

PRE-ACTION CONSIDERATIONS

2.3-4
Limitation Period in Contract & Tort

Answer

A

o CONTRACT = 6 YEARS
from date of breach of contract
NB. A shorter limitation in a construction contract to ‘make good defects’ does not prevent simple contract action in statutory 6-year period
o GENERAL TORT = 6 YEARS
from date damage occurred
o PI TORT = 3 YEARS
from date harm occurred
o LATENT DEFECTS / DAMAGE
Tort of Negligence
For faults in design, materials, or workmanship existing but not apparent when work completed on the later of:
o 6 YEARS
from accrual of the action and
o 3 YEARS
from date claimant knew / reasonably ought to have known
o 15 YEARS LONGSTOP
o MINORS = From 18 years of age
If C is a minor = limitation period commences on 18th birthday
o FRAUD OR CONCEALMENT
Limitation periods do not commence until date of knowledge.
o EXTENSION
Court has discretion to extend limitation period but will only do so in exceptional cirucmstances.

Question 13

Q

PRE-ACTION CONSIDERATIONS

2.4B
* 4 Fundamentals of Limitation Periods in Contract and Tort

Answer

A

1. Primary Limitation
o CONTRACT = 6 YEARS
from date of breach of contract
o GENERAL TORT = 6 YEARS
from date damage occurred
2. Secondary Limitation
o TORT based on negligence =
3-years from date of knowledge
o LONGSTOP - up to 15 years
3. Personal Injury
3 years from date of harm
4. Postponement
Limitation periods for fraud or concealment do not commence until date of knowledge.

Question 14

Q

PRE-ACTION CONSIDERATIONS

2.5 - Time stops running for limitation period purposes when…

Answer

A

the claimant delivers the properly completed claim form to the court with a request to issue proceedings, together with the correct fee.

Question 15

Q

PRE-ACTION CONSIDERATIONS

2.6 - If a claim is issued before expiry of the limitation period…

Answer

A

o it may be possible to alter the name of the defendant if D correctly identified but mistakenly named.
o If a new defendant is named after expiry of limitation period + D raises the limitation defence = C can ask the court to disapply the limitation period (which is at the court’s discretion).

Question 16

Q

2.0 SRA
2. Preliminary considerations:
ii. Who are the parties?
iii. Does D have means to pay?

Answer

A

i. Who is the defendant?
ii. Where is the defendant?
iii. In what capacity should D be sued?
individual, sole trader, partnership, LLP, LTD
iv. Is D worth suing?
conduct company search, bankruptcy search

Question 17

Q

2.0 SRA
2. Preliminary considerations:
iv. Merits of the case

Answer

A

i. Consider merits of the case
= can client achieve satisfactory solution at a reasonable cost?

Question 18

Q

2.0 SRA
2. Preliminary considerations:
v. Causes of Action
1. summary

Answer

A

= Legal basis of the claim i.e.:
1. CONTRACT
i. Existence of contract
ii. Express Terms
iii. Implied Terms
SGA, SGSA, CRA
iv. Breach of Terms
v. Consequence of breach
vi. Damage and Loss
Resulting in recoverable loss

in the alternative consider:
2. TORT
i. Negligence
ii. Statute
iii. Nuisance

Question 19

Q

2.0 SRA
2. Preliminary considerations:
v. Causes of Action
2. Contract

Answer

A

= Legal basis of the claim i.e.:
1. CONTRACT
i. EXPRESS TERMS - in the contract, or
ii. IMPLIED TERMS
Sale of Goods Act = B2B
- satisfactory quality
- fit for purpose
Sale of Goods & Services = B2B
- right to goods
- free from charge / encumbrance
- correspond with descriptions / samples
- satisfactory quality
- fit for purpose
- carry out service with reasonable care and skill.
Consumer Rights Act = B2C
- as above

To put C in position they would have been if contract had been properly performed:

Question 20

Q

2.0 SRA
2. Preliminary considerations:
v. Causes of Action
3. Tort

Answer

A

2. TORT
in the alternative consider:
i. Negligence / Statute
- (statutory) DOC
- Breach of DOC
- Breach caused damage/loss
iii. Nuisance
- Use of land
- is unreasonably interfered with
- by other landowner
e.g. noise, tree roots, water flooding

To put C in position they would have been had negligent act not occurred.

Question 21

Q

PRE-ACTION CONSIDERATIONS
PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS

3.1-3
Explain the Pre-action protocols

Answer

A

3.1 - Pre-action protocols set out the steps that each party should take before commencing legal proceedings
3.2 - There are a number of dispute-specific protocols.
3.3. If no specific protocol applies, courts expect litigants to follow the guidelines set out in the Practice Direction on Pre-Action Conduct and Protocols
(the ‘Practice Direction’)

Question 22

Q

PRE-ACTION CONSIDERATIONS
PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS

3.3
Explain the Practice Direction
* purpose of pre-action protocols
* principles
* key steps

Answer

A

Purpose
o encourage exchange of information so that the parties may be able to settle cases without need for litigation.
o to enable proceedings to run to the court’s timetable if litigation does become necessary.

Principles
o Litigation should be a last resort

Key steps
1. C sends Letter Before Claim including:
o concise details of the claim
o include key documents
2. D sends Letter of Response:
o within 14 days for straightforward claim
o up to 3 months for a complex claim
o indicate if they accept, or not, reasons, or counterclaim
o include key documents
3. **Claimant replies **+ parties should consider:
o ADR
o using a single joint expert
4. Stocktake
o consider whether litigation can be avoided
o narrow issues in dispute

Question 23

Q

PRE-ACTION CONSIDERATIONS
PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS

3.4
Explain the Personal Injury Protocol:

Answer

A

The claimant’s letter of claim should include:
o Summary of the facts
o Impact of C’s injuries on daily life
o Hospital attended + ref number, and
o Indication of financial losses

The defendant must respond within 21 days
o The response may indicate that the D wishes to investigate, in which case they have 3-months to admit or deny the claim
o If the defendant does not respond within 21 days the claimant can issue proceedings

Question 24

Q

PRE-ACTION CONSIDERATIONS
PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS

3.5
What are the consequences if a party fails to follow the relevant protocol or the Practice Direction?

Answer

A

o Stay of proceedings to allow the Practice Direction to be complied with
o Ordering non-compliant party to pay the costs (or part of the costs) of the other party
o If non-compliant party is the claimant, restricting interest on the claim.
o if a party doesn’t follow the applicable pre-action protocol in whole or in part:
- they may be penalised in the costs that they are ordered to pay / can recover
- if they are ordered to pay damages, they may have to pay interest at a higher rate.

Question 25

Q

PRE-ACTION CONSIDERATIONS
PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS

3.5
When might it be justifiable to issue proceedings without following the relevant protocols?

Answer

A

o The limitation period is almost over
o A court order is required to preserve evidence or assets, or
o There is concern that defendant may seek to issue proceedings in another country to avoid UK courts.

Question 26

Q

SRA
* applicable law:
mechanisms to determine which country’s laws apply to a contractual or tortious claim issued in the courts of England and Wales.

Answer

A

CONTRACT
o All contracts should have a clearly worded clause stating what law will govern the contract.
o if not, the applicable law will be where the ‘characteristic performer’ has their habitual residence i.e. the country with which it is most closely connected.

TORT
o General rule is that where there is no agreement between the parties, the law of the country in which the damage occurs will apply.

Question 27

Q

STARTING PROCEEDINGS
CHOICE OF COURT

4.1 - How is a proceeding commenced?

Answer

A

o A proceeding is commenced by issuing a claim form setting out brief details of the claim

Question 28

Q

STARTING PROCEEDINGS
CHOICE OF COURT

4.2 allocation of business between the High Court and the County Court

Answer

A

In England and Wales civil disputes are dealt with either by the County Court or High Court.
o If the value of the claim is £100,000 or less it MUST be started in the County Court (£50,000 or less for Personal Injury Claims)
o If the value of the claim exceeds £100,000 it MAY be started in the High Court

Question 29

Q

STARTING PROCEEDINGS
CHOICE OF COURT
4.3 - All claims for specified debts owed = where the sum is certain; aka specified claims) are commenced by

Answer

A

o completing a money claim form which will be issued by the County Court Money Claims Centre (‘CCMCC’) in Salford, Manchester.
o Most other claims (unspecified claims for damages) also start in the CCMCC.
 Following receipt of a defence or admission, the CCMCC will normally transfer the claim to the hearing centre local to:
* The defendant’s home address (if the defendant is an individual); or
* The claimant’s preferred hearing centre (if the defendant is a company).

Question 30

Q

STARTING PROCEEDINGS
CHOICE OF COURT

4.5 Filing in High Court is appropriate if:

Answer

A

o The financial value of the claim is high;
o The claim is complex
o The outcome is important to the public in general

Question 31

Q

ISSUING PROCEEDINGS
5.1 How is a proceeding commenced?

Answer

A

Proceedings commence when the claimant or their solicitor issue:
1. a claim form (N1)
2. Particulars of claim
(as part of N1 or separately)
3. Any annexes
4. appropriate court fee

Question 32

Q

ISSUING PROCEEDINGS

5.3 - The claim form must state the value of the claim (the amount sought as a remedy):

Answer

A

o If the claim is for a specified sum (a debt claim), that amount should be stated;
o If the court will have to assess damages, the claim form should state that the claimant expects to recover:
 Not more than £10,000;
 More than £10,000 or, in a personal injury case, in excess of £1,000;
 More than £25,000; or
 More than £100,000 or, in a personal injury case, more than £50,000 if the claim is to be filed in High Court.

Question 33

Q

ISSUING PROCEEDINGS

5.7. - The claim form must include a signed statement of truth.
who can sign?

Answer

A

Usually, it should be signed by the claimant, but the solicitor may sign.

Question 34

Q

ISSUING PROCEEDINGS

5.8 Service of the claim form

Answer

A

The claimant must decide whether the court or the claimant will serve the claim on the defendant
o If the court is to serve, the claimant must include one copy of the complaint for each defendant named plus one copy for the court
o The court will send a Notice of Issue to the claimant confirming the date the court issued the claim

Question 35

Q

SERVICE OF PROCEEDINGS

6.1. - How long to file a claim form?

Answer

A

A claim form must be served on the defendant within 4-months of its date of issue.
o If service is outside the jurisdiction = the period is extended to 6-months.
o Court permission is required to serve outside the jurisdiction (ex. Scotland & NI)
o A claimant can make an application to extend the period of validity
o The court will grant the application only in exceptional circumstances.

Question 36

Q

SERVICE OF PROCEEDINGS

6.2-6.7
Methods of serving the claim form?

Answer

A

a) personal service
b) first class post = most common
c) leaving at a specified place
d) fax - only if party has indicated willing to accept
e) email - only if party has indicated willing to accept

Question 37

Q

SERVICE OF PROCEEDINGS

6.8. - Deemed service

Answer

A

o personal service / fax / email
= same day if before 4:30 pm
= otherwise next business day

o first class post
= second business day after it has been posted provided that is a business day.
= otherwise next business day

Question 38

Q

SERVICE OF PROCEEDINGS
6.9. If a defendant’s whereabouts are unknown, the claimant should:

Answer

A

o send proceedings to the defendant’s last known address if the claimant has made reasonable enquiries to ascertain the defendant’s address.
o If the defendant is in prison, the claimant should serve the defendant in prison

Question 39

Q

SERVICE OF PROCEEDINGS

6.10 If a defendant proposes to argue that service of the proceedings was not valid:

Answer

A

they need to indicate such on the acknowledgment of service and make an application to set service aside within 14 days.

Question 40

Q

SERVICE OF PROCEEDINGS

6.11.
o If the court serves the claim form = X
o If the claimant’s solicitor is serving = Y

Answer

A

o If the court serves the claim form
= it will issue a certificate of service and send to C
o If the claimant’s solicitor is serving
they need to file a certificate of service within 21 days of service

Question 41

Q

SERVICE OF PROCEEDINGS

Service of the claim form by an alternative method or at an alternative place

6.12
If service might not be achieved within the validity period of a claim form = the court may permit service by an alternative method or at an alternative place on application of a party if…

Answer

A

they can show a good reason for the order

An application for an order under this rule –
(a) must be supported by evidence; and
(b) may be made without notice.

Question 42

Q

SERVICE OF PROCEEDINGS

6.13 SRA / ULAW
* adding, removing or substituting parties

Answer

A

On occasion it might be necessary to add, remove or substitute parties.
- An existing party or person who wants to become a party can make an application

Question 43

Q

SERVICE OF PROCEEDINGS

6.14 SRA / ULAW
* procedure for service of a claim form outside the jurisdiction (with or without the court’s permission) and mechanisms for effecting valid service in another jurisdiction

Answer

A

If a claim form is to be served outside of England and Wales:

o the CPR allows the claim form must be served within 6 months
(not 4 months within Eng & Wales)

o Court’s permission may be required

Question 44

Q

RESPONDING TO A CLAIM

7.1
i. How does a defendant respond to claim
ii. What is the time limit to respond?
iii. + consequences if they don’t?

Answer

A

i. D responds on an N9 response pack
ii. 14 clear days to respond from the date of deemed service of the Particulars of Claim.
iii. If D does not respond within 14 days = the claimant can obtain judgment.

Question 45

Q

RESPONDING TO A CLAIM

7.2 Defendant’s options in completing the Response Pack:

Answer

A

ADMIT claim in whole or part
o Even if D admits the claim, they can still deny the amount of the loss
o If D admits only part of the claim, they can file a defence as to the other parts
File a full DEFENCE
+ possible COUNTERCLAIM
File an ACKNOWLEDGMENT OF SERVCE
= D has an additional 14 days to respond
= 28 days total

Question 46

Q

RESPONDING TO A CLAIM

7.3
Longstop date to respond to a claim

Answer

A

o The parties may agree to extend the time for filing a defence for an additional 28 days
o = for a maximum of 56 days from the deemed date of service of the particulars).

Question 47

Q

RESPONDING TO A CLAIM

7.6 Explain SUMMARY JUDGEMENT
(or interim payment)

Answer

A

o Once D files an acknowledgment of service, C can make an application for summary judgment
(or interim payment)
o C can obtain summary judgment if they can show: - D has no real prospect of success
- **no other compelling reason why the case should proceed to trial”

o requires an assessment of merits of the case
+ no “material issue of fact” / all facts before the court
=
the Court can enter judgment as a matter of law.

Question 48

Q

RESPONDING TO A CLAIM

7.7. - A defendant may dispute the court’s jurisdiction after receiving the claim form and particulars of claim.

Answer

A

o To do so, the defendant ticks the box in the acknowledgment of service indicating they wish to dispute the court’s jurisdiction
o The defendant must then make an application challenging the court’s jurisdiction, supported by written evidence, within 14 days after filing the acknowledgment of service.

Question 49

Q

RESPONDING TO A CLAIM

7.8. - If a defendant fails to file a defence within the time limits, the court may enter a default judgment against the defendant, preventing the defendant from mounting a defence.

What can a defendant do?

Answer

A

A defendant can make an application to set aside a default judgment if they can show:

MANDATORY GROUND
o Court is obliged to set aside if it was wrongly entered

DISCRETIONARY GROUND
o They acted promptly;
o They have a real prospect of successfully defending; and
o There is some other good reason why the judgment should be set aside.

Question 50

Q

RESPONDING TO A CLAIM

7.8
o When must a court set aside a default judgment?

Answer

A

A court must set aside a default judgment if:
o The judgment was entered before expiry of the time to respond
o The claim has already been paid or settled;
o The judgment was entered whilst the defendant’s application to strike out or obtain summary judgment in respect of the claim was pending; or
o The judgement was entered whilst the defendant’s request for time to pay was pending.

Question 51

Q

RESPONDING TO A CLAIM

7.9 SRA ULAW

Discontinuance

Answer

A

C can decide not to pursue their claim at any time
even though no settlement has been reached

Question 52

Q

RESPONDING TO A CLAIM

7.10 SRA ULAW
Settlements
Explain Pre-Action Settlements

Answer

A

Where there has been a Pre-Action Settlement:
o Claimant will not be able to recover legal costs
o Once settlement terms have been agreed, they should be recorded in writing so they can be enforced if one party defaults.

Question 53

Q

RESPONDING TO A CLAIM

7.11 SRA ULAW
Settlements
Settlements after issue of proceedings

Answer

A

Where there has been a Settlements after issue of proceedings:
o Preferable to be recorded in a court order or judgement.
o Where none of the parties are a litigant in person it is possible to avoid an application to the court by drawing up a CONSENT ORDER for sealing by a court officer showing:
o agreed terms of settlement
o expressed as being “By Consent”
o signed by legal representatives of each of the parties.

Question 54

Q

STATEMENTS OF CASE

8.0 ULAW
What are statements of case?

Answer

A

o The formal documents in which the parties concisely set out their respective cases
o Served between the parties
o Filed at court
o = ensures each party knows their opponent’s case

Question 55

Q

STATEMENTS OF CASE

8.1
Particulars of Claim

Answer

A

o Particulars of claim should provide enough information to identify the issues so that the judge may give directions to ensure that the trial can proceed promptly, fairly, and proportionately in keeping with the overriding objective.

Question 56

Q

STATEMENTS OF CASE

8.1
Particulars of Claim
1. Contract Claims

Answer

A

o The parties to the agreement
o the nature of the agreement
o terms that may have been breached
o facts showing breach and losses
o a prayer for relief (that is, the remedy sought), o o statement of truth

Question 57

Q

STATEMENTS OF CASE

8.1
Particulars of Claim
2. Road Accident Claims

Answer

A

A brief description of the collision (including date, time, and place), allegations of negligence, details of any relevant conviction, details of injuries suffered, a schedule of past and future losses, a prayer for relief (that is, the remedy sought), and a statement of truth

Question 58

Q

STATEMENTS OF CASE

8.1
Particulars of Claim
3. Personal Injury Claims

Answer

A

A brief description of the accident (including date, time, and place), allegations of negligence, details of any relevant conviction, details of injuries suffered, a schedule of past and future losses, a prayer for relief (that is, the remedy sought), and a statement of truth

Question 59

Q

STATEMENTS OF CASE

8.1
Particulars of Claim
4. Personal Injury Claims

Answer

A

Facts establishing an employer-employee relation- ship, a description of the circumstances of the injury, allegations of breach, details of injuries suffered, a schedule of past and future losses, a prayer for relief (that is, the remedy sought), and a statement of truth

Question 60

Q

STATEMENTS OF CASE

8.2
Defence

Answer

A

The defence sets out D’s answer to the claim.
D must state for each paragraph of the particulars of claim whether it is:
o ADMITTED
= the claimant will not have to prove it
o NOT ADMITTED
= state they neither admit nor deny the paragraph because fact(s) alleged are outside the defendant’s knowledge (in which case the claimant must prove their facts)
o DENIED
= state reasons or setting out an alternative version of events (in which case, the claimant must prove their facts)
=
Narrows the issues in dispute between the parties

Question 61

Q

STATEMENTS OF CASE

8.3
What is a Reply?

Answer

A

o A claimant may wish to file a reply to the defence.
o It is optional and is usually prepared only if something has been raised in the defence that requires a response

Question 62

Q

STATEMENTS OF CASE

8.4
Part 20 Claims

Answer

A

A defendant may want to make their own claim against a claimant, or bring another party into the proceedings. These additional claims are called Part 20 Claims:
o Counterclaim:
A defendant’s claim against the claimant for losses arising from the same set of circumstances involved in the claimant’s claim. A counterclaim:
* Must be brought within the same set of proceedings
* Is brought by an existing defendant against the claimant
* Is a monetary claim in its own right

o Third-Party Claim
A defendant claims that a person who is not a party to the action has caused the claimant’s losses
* The new party is called a ‘third party’
* Particulars of claim must be included in or served with the third-party claim

o Indemnity or contribution:
A defendant claims that if they are found liable to the claimant, another party to the claim should be liable to repay the whole amount (indemnity) or some (contribution) to the defendant
* The defendant does not need court permission to file the above Part 20 claims if the defendant files the claim with their defence
* If the defendant wishes to make a Part 20 claim at another time, the defendant must then obtain the court’s permission

Question 63

Q

STATEMENTS OF CASE

8.4
Defence to Part 20 Claims

Answer

A

o must be filed with 14 days
o unless an extension to 28 days is agreed
o if they fail to do so D may enter judgment in default on the counterclaim

Question 64

Q

STATEMENTS OF CASE

8.5
Request for further information

Answer

A

if statements of case are confusing the court or the parties may request further information

if successful, a party will be ordered to:
a) clarify a matter in dispute or
b) give additional information related to a matter.

Answer 65

A

After a Statement of Case has been served, a party can amend it:
a) **only with written consent of all other parties or
b) permission of the court

Court will decide whether or not to exercise it’s discretion taking into account
o overriding objective of dealing with case justly and at proportionate cost.
o i.e. injustice to applicant vs injustice to opposing party

Answer 66

A

o to enable the court to deal with cases justly and at proportionate cost.
o ADR may aid in achieving this goal.

Answer 67

A

o Cases are dealt with proportionately and allocated to different tracks to ensure the most complex / high value claims receive greater resources.

o Court provisionally allocate + request parties to complete a Directions Questionnaire to confirm the track and set directions for case management.

o Small Claims Track = Claims for £10,000 or less
£5,000 in PI claims from road traffic accidents
£1,500 in any other PI claims for personal injuries

o Fast Track: Claims between £10,000 and £25,000
in dispute (or for many personal injury cases resulting from a road accident case in excess of £5,000)

o Multi-Track: Claims for more than £25,000

Other Factors taken into account:
o remedy sought
o complexity
o number of parties
o value of any counterclaim
o amount of oral evidence
o importance of non-parties
o views & circumstances of parties

Answer 68

A

The Directions Questionnaire is a questionnaire the court will send out with the Notice of Allocation in a fast track or multi-track case, asking for estimates of trial length, whether the parties complied with the pre-action protocol, whether experts will be required, and the like.

o The parties must return the Directions Questionnaire within 28 days

Answer 69

A

o Proportionate procedure to deal with straightforward claims.
Small claims directions normally provide:
o That documents are to be exchanged at least 14 days before the hearing
o The hearing date
o That no expert is to be used without court permission
o hearing is informal + court can make a decision based on statements of case (rather than oral evidence)

Answer 70

A

= “middle range” of cases

9.4. Fast track directions normally provide that:
o Disclosure within 4 weeks
o Witness statements within 10 weeks
o Expert reports within 14 weeks
o Pre-trial checklists - sent out at 20 weeks and returned at 22 weeks
o Trial at 30 weeks

Difference with Multi Track:
o Directions are standard (not tailored)
o Expert evidence limited
o Trial expected to last longer than 1-day
o Power to award costs is limited

Answer 71

A

Multi-track directions will usually be given at the Case Management Conference (CMC).
Usually, the court will require parties to file:
o Disclosure reports at least 14 days before the conference;
o Costs budgets 7 days before the conference; and
o A case summary setting out the main issues in the case.
o The directions usually include:
* Encouragement for the parties to consider ADR
* Disclosure requirements
* The number of witnesses the parties may call and provision for exchange of witness statements, and
* Costs budgeting provisions—either approval or amendment of the parties’ submitted costs budgets

Answer 72

A

9.6. Sanctions and reliefs for noncompliance:
o Striking out the claim, defence, or counterclaim of the party who failed if an ‘unless order’ was issued by the court on application of the party seeking compliance;
o Imposing costs or increased interest on the defaulting party;
o Requiring a defaulting party to pay money into court;
o Debar the defaulting party from relying on evidence.
o A party can apply for relief from sanctions if they had a good reason for non-compliance (such as serious illness).

Answer 73

A

o Applications made after litigation starts but before trial starts
o Aim to ensure the case proceeds as quickly & efficiently as possible

Answer 74

A

o Application should be made to the court where the claim started.
o Must state what order is sought and why.
o Applicant should attach a draft order to assist the judge
o Application should be made as soon as it is apparent that it is necessary or desirable
o They should be served on the opponent at least 3 clear days notice (before the hearing?)
o Notice is not required if:
 there is exceptional urgency
 Overriding objective would be best achieved by an order without notice.
 e.g notice would give other party an opportunity to dispose of evidence or assets

Answer 75

A

a) Unless Orders
b) Application to Set Aside Default Judgement
c) Summary judgment
d) Strike out a claim
e) interim payment
f) interim injunction
g) freezing injunction
h) search order

Answer 76

A

An “unless” order is an order that, unless a party performs an obligation by a specified date

they will be penalised by the sanction set out in the order.

Answer 77

A

If a defendant fails to file a defence within the time limits, the court may enter a default judgment against the defendant, preventing the defendant from mounting a defence.
o Default judgment does not call for any assessment of the merits of the case.

o A defendant can make an application to set aside a default judgment if they can show:
 They acted promptly;
 They have a real prospect of successfully defending; and
 There is some other good reason why the judgment should be set aside.

Answer 78

A

Summary judgment is an interim order that can be applied for by either party during the proceedings.
o The application asks the court to enter judgment for the applicant without proceeding to trial

The applicant must show that:
o the other party has no real prospect for success and
o there is no compelling reason why the case should proceed to trial

Answer 79

A

is an interim application asking the court to strike out a claim in the Statement of Case because:
o The statement discloses no reasonable ground for making or defending the claim;
o The Statement of Case is an abuse of the court’s processes; or
o There has been a failure to comply with a rule, practice direction, or order.

Answer 80

A

is an application for the court to order some payment before the court has given a final determination on the claim.
o Interim payments are always discretionary
o The court cannot award an interim payment if doing so would cause an injustice

Grounds for order:
o The defendant has admitted liability
o The claimant has obtained judgment, but the sum to be paid is not yet assessed
o The court is satisfied that if the action proceeded to trial, the claimant would obtain judgment for a substantial sum

o The court can award a reasonable proportion of the likely amount of the final judgment

Answer 81

A

is an application asking the court for an order:
o Either requiring a party to do something (mandatory)
o Or prohibiting the party from doing something (prohibitory).

Answer 82

A

A freezing injunction prohibits the enjoined person from disposing of specified assets
o Applications for freezing injunctions can be made only to the High Court
o Applicant must prove:
* There is a justifiable cause of action;
* The claimant has a good, arguable case;
* D has assets in the jurisdiction; and
* There is a real risk that D may dispose of assets before judgment can be enforced.

Answer 83

A

If it is clear D will not obey the rules relating to disclosure and may destroy incriminating documents the other party can ask the court to make a search order to search for, and potentially seize, evidence that the party might otherwise destroy.

o Can be obtained only from the High Court
o Invariably sought without pre-hearing notice
o Grounds:
* A strong prima facie case
* Reasons for claiming the enjoined party might hide or destroy the evidence; and
* Evidence the property or documents are in the enjoined party’s possession.

Answer 84

A

o Duty to disclose all documents relevant to the litigation.
o The duty continues throughout the litigation
o The duty extends to emails, databases, photographs, and models, as well as written documents

Answer 85

A

11.2. On the fast track an order for Standard Disclosure is usually made which requires a party to disclose:
o Documents on which they intend to rely
o Documents that
 adversely affect their own case
 adversely affect another party’s case
 support the other party’s case

Answer 86

A

A party has ‘control’ of a document if they:
o Have physical possession of the document;
o Have a right to possession
o Had the document in their possession but no longer have it.

Answer 87

A

The court expects each party to make a reasonable and proportionate search* for documents.

depends on the nature of the case, its value, and its importance

Answer 88

A

o A legal representative must cease to act for a client who is not prepared to comply
o If a document is removed or destroyed, the representative is required to inform the court and the other party of its existence, together with the reason for its destruction
 The court is entitled to draw an adverse inference if a party has failed to preserve a relevant document

Answer 89

A

A list of documents in its control that they do not object to the other party inspecting;
A list of documents in its control that they object to the other side inspecting + reasons for objecting; and
3 A list of documents that are no longer in its control, stating when they were last in their control and where they are now.

Answer 90

A

Each party (not their solicitor) is required to make a disclosure statement:
1. detailing the extent of the search made.
2. Certifying that the person understands
the duty to give disclosure + they have carried out that duty to the best of their knowledge
3. Declaring that they believe that the extent of the search made is reasonable and
4. Explaining why any particular search may not have been carried out.

Answer 91

A

The Standard directions allow:
o 28 days from the date of the directions order for the parties to serve their lists of documents.
o The order will also routinely require that inspection take place within 7 days

Answer 92

A

Apply for specific disclosure
Apply for an unless order
Submit a Request for Information

Answer 93

A

o Privilege;
o The document is no longer in the party’s control; or
o It would be disproportionate to allow inspection.
o Documents may be redacted to blank out irrelevant and confidential information.

Answer 94

A

o Legal advice privilege
protects legal advice between a client and their solicitor
o Litigation privilege
protects communications with third parties e.g. experts and barristers
o Common interest privilege when there are multiple defendants or group actions.
o Without prejudice privilege protects discussions regarding potential settlement that the parties agreed were not to be referred to in court
o NB. If a document is privileged, its existence still must be disclosed.

Answer 95

A

To set out the witnesses evidence-in-chief

Answer 96

A

o from witnesses who have provided a signed statement setting out their evidence.
o endorsed with a statement of truth + served on the opponent in accordance with the directions order
o If not possible to obtain a witness statement before the exchange date = a party may seek court permission to serve a witness summary

Answer 97

A

generally the proponent of the witness cannot call the witness to give evidence
unless a good reason for the failure can be shown

Answer 98

A

o A witness may be compelled to give evidence by serving a witness summons
o Party must ask the court to issue the summons at least 7-days before the hearing

Answer 99

A

o An affidavit can be used as evidence
o = sworn statement, endorsed by a solicitor, that maker had sworn contents were true.

Answer 100

A

Hearsay evidence
o is a statement made out of court offered in evidence to prove the truth of what is being said in the statement.
o may be oral or written
o The trial judge must indicate the weight they attached to hearsay

Answer 101

A

if the witness comes to court and affirms their statement
= it is treated as if it were spoken in court
= serves as the proponent’s evidence in chief

Answer 102

A

o 1. The court will consider whether it would have been reasonable or practicable to force the witness to attend;
o 2. whether the witness made the statement contemporaneously; and
o 3. whether there was any motive to misrepresent or conceal facts.

Answer 103

A

o the fact a person has a conviction for an offence in UK is admissible
to prove they committed that offence e.g. civil road traffic accident case
o A party may rely on previous convictions as evidence of similar conduct in the case in question.

Answer 104

A

Experts can give opinion evidence
o derived from special knowledge, skill, or training that is not within the ordinary experience of the judge

Answer 105

A

o Experts owe the court a duty to exercise independence, integrity, and impartiality.
o This overrides any duty owed to the person who instructed them or who is paying their fee

Answer 106

A

As a general rule, expert evidence is to be given in a written report addressed to the court.

Answer 107

A

Fast Track
The parties should try to agree a single joint expert unless there is good reason not to.

Answer 108

A

The court may allow parties to instruct their own experts if:
o issues are complex / high value;
o The parties already have their own experts from the pre-action phase = more cost-effective to retain
o There are different schools of thought
o The issue is significant to the outcome of the action
o Court may order a without prejudice meeting of the experts
+ request a joint written statement

Answer 109

A

o Expert Reports are privileged and are not subject to inspection by the party’s opponent.
o However, if the party intends to rely on the report, it must be disclosed and it loses its privilege and is subject to inspection.

Answer 110

A

o consent order which the court will issue.
o This makes the agreement enforceable

Answer 111

A

o A Tomlin order is a type of consent order which confirms the parties have agreed a stay of proceedings + a separate schedule confirming terms of settlement
o A Tomlin order will be appropriate where the terms of settlement are:
 Complex
 Go beyond the boundaries of the claim.
 Confidential or sensitive
o Because it is a stay of proceedings, if a party defaults on the terms proceedings can pick up where they left off
= there is no need to file new proceedings.

Answer 112

A

High Court
o Judge = My Lord / Lady
o Master = Judge

High / County Court
o Circuit Judge = Your honour

County Court
o District Judge = Judge

Answer 113

A

Opening submissions (C then D)
Witness evidence in chief then cross examination (C then D)
Closing submissions (C then D)

Answer 114

A

At the conclusion of trial Judge may give judgment immediately
or reserve judgment for a later date.

Judge will determine
o Liability
o Quantum
o Interest + Costs

Answer 115

A

o District Judge (County Court) > Circuit Judge (County Court)
o Circuit Judge (County Court) > High Court Judge (High Court)
o Masters (High Court) > High Court Judge (High Court)
o High Court Judge (High Court) > Lord Justice of Appeal (Court of Appeal)
o Lord Justice of Appeal (Court of Appeal) > Justice of Supreme Court (Supreme Court)

focus on the judge who made the decision and not the court they were sitting in.

Answer 116

A

o either the court in which the decision was made or
o the court which will hear the appeal

Answer 117

A

o The decision is wrong in fact, law, or the exercise of the court’s direction; and/or
o The decision is unjust because of serious procedural or other irregularity in the proceedings

Answer 118

A

A party has 21 days to request permission to appeal from the time the decision is handed down.

Answer 119

A

o real prospect of success
o OR some other compelling reason why it should be heard

Answer 120

A

Loser pays the winner’s costs and disbursements.
o Costs are solicitors’ fees
o Disbursements are expenses incurred by the solicitor on behalf of their client

Answer 121

A

o Costs ordered to be paid are given as an indemnity to the person entitled to them.
o = They are not imposed as a punishment
o = The amount which the paying party has to pay cannot exceed the amount which the successful receiving party has to pay to their solicitor.
o = they cannot recover their solicitor’s ‘usual’ fee if the solicitor gave them a discount.

Answer 122

A

Standard basis
o Most common
o The court allows only proportionate costs
o Doubts resolved in favour of the paying party
Indemnity Basis
o The court does not consider proportionality
o Doubts resolved in favour of the receiving party
o Usualy only awarded as a sanction against a party for incurring unnecessary costs by their conduct

Answer 123

A

“Between the parties” costs are the costs the other side have to pay (also known as “Inter-partes” costs)

Answer 124

A

o If D is concerned that C will be unable to pay D’s costs if they win = they can make an interim application for a security for costs order.
o If granted, C may be required to pay money into court or provide a bond
Only Available If::
o C is resident outside the jurisdiction;
o C is a company or other body + there is reason to believe that it will be unable to pay D’s costs
o C has changed address since the claim was started with a view to evading the consequences of litigation;
o C failed to provide an address or gave an incorrect address on the claim form;
o C is acting as a nominal claimant (i.e. someone suing for the benefit of another person); or
o C has moved assets outside England and Wales to make it difficult to enforce an order for costs against them

NB.
o Only a defendant can make an application for security for costs.
o The logic is that the defendant cannot stop the claimant bringing proceedings, whereas a claimant can, and frequently will, make a judgment as to whether the defendant is worth suing or not.

Answer 125

A

A court may issue a wasted costs order requiring a solicitor or party to pay the costs of the other party if the solicitor acted improperly, unreasonably, or negligently.

Answer 126

A

A Part 36 offer is a formal WP offer to settle a claim.
o WP = cannot be referred to in court
o Must be in writing + state it is a Part 36 offer
o Must specify the ‘relevant period’ during which it cannot be withdrawn without court permission (minimum 21 days)

Answer 127

A

o the offeree can request a clarification within 7 days.
o If the offeror does not provide suitable clarification within 7 days, the offeree may apply to the court for an order requiring the offeror to clarify

Answer 128

A

o A Part 36 offer can be withdrawn as long as the offeree has not served a notice of acceptance
o If the notice of withdrawal is served before the relevant period expires, it takes effect upon expiry of the relevant period

Answer 129

A

o The offer can be accepted only in writing.
o It may be accepted after the relevant period has expired if it has not been withdrawn by the offeror
o A Part 36 offer can be accepted during trial only with permission of the judge shared or sold for any purpose.
o If a Part 36 offer is accepted within the relevant period:
 The defendant will pay the costs of the claim to the point of acceptance; and
 The costs will be assessed on the standard basis (reasonable costs) if the parties cannot agree them.

Answer 130

A

If D accepts C’s offer after expiry of the relevant period
= court will decide the liability for costs if the parties cannot agree

If C accepts D’s offer after expiry of the relevant period
= D’s liability to pay C’s costs runs only up to the end of the relevant period
i.e. 21 days after the offer was made

Answer 131

A

the court may award the offeror pre-issue costs that they incurred.

Answer 132

A

Rejection by Claimant:
o If C beats the offer at trial
= the Part 36 has no effect
eg. D offered £15k, C awarded £20k
= no effect
o if C fails to beat
= a split costs order will be made
eg. D offered £20k, C awarded £15k
= Split costs D up to / C after expiry of relevant period
= D will be ordered to pay C’s costs (on standard basis) up to expiry of the relevant period.
+ C will be ordered to pay D’s costs (on standard basis) after expiry of the relevant period
o if C loses
= Penalty interest is payable on costs

Answer 133

A

Rejection by Defendant

o If C equals or beats the offer at trial
= severe sanctions will be imposed on D
eg. C offered £15k, C awarded £20k
= D will be ordered to pay:
- interest on the entirety
of the claim at an enhanced rate for the period after the relevant period expired
* Costs for this period on the indemnity basis
* Additional damages of up to 10% for the first £500,000 in damages (and 5% for amounts above) may also be available

o if C wins but is awarded a lesser sum or loses
= the Part 36 has no effect
eg. C offered £20k, C awarded £15k
= no effect

Answer 134

A

The court may allow the party to recover the cost of pre-action work in addition to the costs of the litigation.

Answer 135

A

High Court
o If the losing party does not pay the judgment in High Court
= interest accrues at 8% per annum from date of the judgment until the award is paid

County Court
o Interest is only payable on a County Court judgment over £5,000.
o However, a County Court judgment over £600 can transfer to the High Court for enforcement so that interest can be collected

Answer 136

A

A judgment creditor (the ‘successful’ party) may apply for an order requiring a judgment debtor (the ‘losing’ party) to attend an oral examination in court to provide information about their means and assets.

Answer 137

A

A writ of control (High Court) or warrant of control (County Court) is issued by the court to an enforcement agent to take control of a judgment debtor’s assets to sell to settle the judgment.

o Creditor must give Debtor 7 days’ notice of the intention to take control of goods
o Agent can enter only the stated address + must provide an inventory of any goods seized and sold
o Goods must be seized within 12 months of the notice
o Agent must sell the goods within 7-days of the seizure with the proceeds used to discharge the debt
o Agent cannot seize:
- Equipment for use in the debtor’s trade
- Household items for basic domestic needs

Answer 138

A

If the judgment debtor has money in a bank, the creditor can obtain a third-party debt order that the bank pays the money to them instead of to the debtor.

Answer 139

A

If a judgment debtor has an interest in land
o a creditor may obtain a charging order which will give the creditor the right to apply for an order for sale.
o This can apply even if the land is in joint ownership

Answer 140

A

If the judgment debtor is an individual in regular employment
o a creditor may apply to the County Court for an attachment of earnings order to compel the debtor’s employer to make regular deductions from the debtor’s earnings and then pay them into court.

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