Dispute Resolution Flashcards
- METHODS OF DISPUTE RESOLUTION
1.1a What are the 4 primary processes for resolving disputes
- Litigation
- Negotiation
- Mediation
- Arbitration
- METHODS OF DISPUTE RESOLUTION
1.1a
Explain the characteristics of LITIGATION which make it an appropriate mechanism to resolve a dispute.
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
.
- METHODS OF DISPUTE RESOLUTION
1.1b
Explain the characteristics of NEGOTIATION which make it an appropriate mechanism to resolve a dispute.
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.
- METHODS OF DISPUTE RESOLUTION
1.1C
Explain the characteristics of MEDIATION which make it an appropriate mechanism to resolve a dispute.
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
- METHODS OF DISPUTE RESOLUTION
1.1d
Explain the characteristics of ARBITRATION which make it an appropriate mechanism to resolve a dispute.
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.
- METHODS OF DISPUTE RESOLUTION
1.2 What is Alternative Dispute Resolution (ADR)
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.
- METHODS OF DISPUTE RESOLUTION
1.4 PAP requires the parties to consider a form of Alternative Dispute Resolution (ADR) to assist with settlement
o Litigation should be a last resort.
o the parties may be required by the court to provide evidence that ADR has been considered
- METHODS OF DISPUTE RESOLUTION
1.5 Failure to engage in ADR
- 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.
2.0 SRA
1. OVERVIEW OF CIVIL LITIGATION
- Preliminary Considerations
- Commencement of Action
- Interim Matters
- Trial
- Post-Trial
2.0 SRA
2. Preliminary considerations:
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?
- PRE-ACTION CONSIDERATIONS
2.1-2
What is a Limitation Period?
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.
- PRE-ACTION CONSIDERATIONS
2.3-4
Limitation Period in Contract & Tort
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.
- PRE-ACTION CONSIDERATIONS
2.4B
* 4 Fundamentals of Limitation Periods in Contract and Tort
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.
- PRE-ACTION CONSIDERATIONS
- 2.5 - Time stops running for limitation period purposes when…
the claimant delivers the properly completed claim form to the court with a request to issue proceedings, together with the correct fee.
- PRE-ACTION CONSIDERATIONS
- 2.6 - If a claim is issued before expiry of the limitation period…
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).
2.0 SRA
2. Preliminary considerations:
ii. Who are the parties?
iii. Does D have means to pay?
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
2.0 SRA
2. Preliminary considerations:
iv. Merits of the case
i. Consider merits of the case
= can client achieve satisfactory solution at a reasonable cost?
2.0 SRA
2. Preliminary considerations:
v. Causes of Action
1. summary
= 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
2.0 SRA
2. Preliminary considerations:
v. Causes of Action
2. Contract
= 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:
2.0 SRA
2. Preliminary considerations:
v. Causes of Action
3. Tort
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.
- PRE-ACTION CONSIDERATIONS
PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS
3.1-3
Explain the Pre-action protocols
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’)
- PRE-ACTION CONSIDERATIONS
PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS
3.3
Explain the Practice Direction
* purpose of pre-action protocols
* principles
* key steps
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
- PRE-ACTION CONSIDERATIONS
PRE-ACTION PROTOCOLS AND PRE-ACTION APPLICATIONS
3.4
Explain the Personal Injury Protocol:
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
- 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?
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.
- 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?
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.
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.
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.
- STARTING PROCEEDINGS
CHOICE OF COURT
- 4.1 - How is a proceeding commenced?
o A proceeding is commenced by issuing a claim form setting out brief details of the claim
- STARTING PROCEEDINGS
CHOICE OF COURT
4.2 allocation of business between the High Court and the County Court
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
- STARTING PROCEEDINGS
CHOICE OF COURT
4.3 - All claims for specified debts owed = where the sum is certain; aka specified claims) are commenced by
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).
- STARTING PROCEEDINGS
CHOICE OF COURT
4.5 Filing in High Court is appropriate if:
o The financial value of the claim is high;
o The claim is complex
o The outcome is important to the public in general
- ISSUING PROCEEDINGS
5.1 How is a proceeding commenced?
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
- ISSUING PROCEEDINGS
5.3 - The claim form must state the value of the claim (the amount sought as a remedy):
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.
- ISSUING PROCEEDINGS
5.7. - The claim form must include a signed statement of truth.
who can sign?
Usually, it should be signed by the claimant, but the solicitor may sign.
- ISSUING PROCEEDINGS
5.8 Service of the claim form
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
- SERVICE OF PROCEEDINGS
6.1. - How long to file a claim form?
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.
- SERVICE OF PROCEEDINGS
6.2-6.7
Methods of serving the claim form?
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
- SERVICE OF PROCEEDINGS
6.8. - Deemed service
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
- SERVICE OF PROCEEDINGS
6.9. If a defendant’s whereabouts are unknown, the claimant should:
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
- SERVICE OF PROCEEDINGS
6.10 If a defendant proposes to argue that service of the proceedings was not valid:
they need to indicate such on the acknowledgment of service and make an application to set service aside within 14 days.
- SERVICE OF PROCEEDINGS
6.11.
o If the court serves the claim form = X
o If the claimant’s solicitor is serving = Y
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
- 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…
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.
- SERVICE OF PROCEEDINGS
6.13 SRA / ULAW
* adding, removing or substituting parties
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
- 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
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
- 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?
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.
- RESPONDING TO A CLAIM
7.2 Defendant’s options in completing the Response Pack:
-
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
- RESPONDING TO A CLAIM
7.3
Longstop date to respond to a claim
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).
- RESPONDING TO A CLAIM
7.6 Explain SUMMARY JUDGEMENT
(or interim payment)
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.
- RESPONDING TO A CLAIM
7.7. - A defendant may dispute the court’s jurisdiction after receiving the claim form and particulars of claim.
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.
- 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?
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.
- RESPONDING TO A CLAIM
7.8
o When must a court set aside a default judgment?
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.
- RESPONDING TO A CLAIM
7.9 SRA ULAW
Discontinuance
C can decide not to pursue their claim at any time
even though no settlement has been reached
- RESPONDING TO A CLAIM
7.10 SRA ULAW
Settlements
Explain Pre-Action Settlements
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.
- RESPONDING TO A CLAIM
7.11 SRA ULAW
Settlements
Settlements after issue of proceedings
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.
- STATEMENTS OF CASE
8.0 ULAW
What are statements of case?
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
- STATEMENTS OF CASE
8.1
Particulars of Claim
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.
- STATEMENTS OF CASE
8.1
Particulars of Claim
1. Contract Claims
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