DISPUTE RESOLUTION Flashcards
What does ‘file’ mean?
Give to the court
What does ‘issue’ mean
Court issues application
What does ‘serve’ mean?
Documents given to the other side.
What does ‘concurrent jurisdiction’ of CC and HC refer to?
Courts both have jurisdiction to deal with civil claims (note the rules around this)
What are the FOUR tracks?
- SMALL CLAIMS (under £10k)
- FAST TRACK (£10k to £25k)
- INTERMEDIATE TRACK (£25k - £100k)
- MULTI TRACK (Over £100k)
Decision Tree for which court to issue in?
Q1: Does specific enactment tell you to issue claim in HC or CC?
YES - issue in said court
NO - next Q
Q2: is claim a PI claim worth less than £50k?
Yes -> CC
No -> next Q
Q3: is claim a non-PI claim worth £100k or less?
Yes -> CC
No -> next Q
Q4: Is issuing in HC justified on grounds of:
a. financial value of claim/amount in dispute
b. complexity of facts/legal issues/remedies/procedures; OR
c. importance to public
Yes -> HC
No -> CC
How many County Courts?
ONE - No separate divisions (court of first instance, can start claim here)
How many divisions in High Court?
THREE: KBD, Chancery, Family
Disputes in London MUST be started in RCJ, but there are district branches of HC.
What are the relevant courts for civil proceedings?
Tribunals
Mags (v limited jurisdiction)
CC (most claims start here, can have appeals)
HC (most claims start here, can have appeals)
CA (appeals only)
UKSC (appeals only, rare).
KBD cases?
General/Admin/Planning/Commercial/ Technology + Construction/Admiralty + FInancial List
Chancery Cases?
Insolvency, Revenue, Competition, Business, Property/Trusts/Probate, IP + Financial List
What is the financial list?
= shared between KBD and Chancery - >£50m, needing judicial knowledge of financial markets
What are the Business and Property Courts?
Commercial/ Technology + Construction/Admiralty + Financial List
Insolvency, Revenue, Competition, Business, Property/Trusts/Probate, IP
Rights of audience rules?
Solicitors have auto-rights in Tribunals, Mags and CC.
Need higher rights of audience for HC, CA and UKSC
Judges - addresses - senior members?
⚜️DDJ (Judge), DJ (Judge), Recorder (Your Honour), CJ (Your Honour)
🧑⚖️HC Masters (Judge), HC Judges (my lord/lady),
🧑⚖️C.A Judges (judge),
🧑⚖️Justices of UKSC (my lord/lady)
LCJ - most senior, represents vies of judiciary - responsible for welfare/training/guidance/deployment.
Master of Rolls - Pres of civil division of C.A
President of Fam Div/Pres of KBD/Chancellor of HC(head of Chancery div) - all members of C.A.
What does CPR 44.2 say about costs? What is exception to this? What factors will be taken into account re this exception?
Court decides whether payable + amount + when
⭐ General Rule - unsuccessful party pays costs
EXCEPTION: court has discretion to make different order
Factors: conduct, success on PART of case, admissible offer to seller (not offer to which Part 36 applies)
Includes….conduct before (Pre-Action) and during, whether reasonable to pursue/contest allegation/issue, manner that pursued/defended case, whether successful party exaggerated its claim
TWO types of costs?
- Solicitor/own client costs
- Party/Party Costs
What are the TWO bases of assessment of costs?
Standard - only allow costs proportionate to matters and resolve doubt in favour of paying party - will look at whether costs proportionately and reasonably (1) incurred or (2) in amount [60% of award for costs on standard basis]
Indemnity - resolve doubt in favour of the receiving party - will look at whether costs unreasonably (1) incurred) or (2) in amount
If basis of assessment is not indicated, or indicated other than standard/indemnity, it will be standard. [70/80% of award for costs on indemnity basis]
When will costs be considered to be reasonably incurred?
If they bear reasonable relationship to: sum of issues, value of non-monetary relief in issue, complexity of litigation, any additional work generated by conduct of paying party, any wider factors e.g. public importance, any additional work/expense due to vulnerability of party or any witness.
Court will consider: Conduct - during/before/efforts made to resolve dispute, Amount/Value involved, importance of matters to all parties, complexity/novelty of questions raised, skill/effort/specialised knowledge involved, time spend on case, place where/circs work/any part done; receiving party’s last approved/agreed budget.
How will courts approach costs payable by paying party to receiving party UNDER TERMS OF CONTRACT?
Court assessing costs payable by paying party to receiving party under terms of a contract - costs, unless contract expressly provides otherwise, will be presumed to be reasonably incurred + reasonable in amount = REBUTTABLE PRESUMPTIONS
With litigation costs, should distinguish between?
SOLICITORS’ FEES
DISBURSEMENTS (non-solicitor fees e.g. court fees, counsel’s fees, expert fees, other costs).
What is BTE and ATE Insurance?
BTE: Before the Event Insurance - (taken out pre-need for legal work - BTE premiums generally not recoverable from otherside)
ATE: After the Event Insurance - Note: insurance policy premium is not recoverable from other party (with exception of clinical negligence expert reports).
How is CONDITIONAL FEE AGREEMENT calculated?
(paid normal + success fee if successful, which comes out of damages - this is % of normal fee i.e. 90% success fee would be normal fee plus 90% of normal fee - does not cover disbursements, just solicitor’s costs - 🧠note must not exceed 25% of damages in PI cases)/
Basic Fee + Success Fee (agreed % of Basic Fee)
e.g. Basic = £20k
Success = 90% (of basic) = £18k
Total = £38k
Damages-based Agreements are calculated how?
(here just get proportion of damages awarded to client by way of remedy - capped - 50% of damages generally, 35% in employment tribunal, 25% in PI)
So DBA = 20% of damages
£150k damages + £10k costs (+ solicitor paid £5k disbursements = £165k
20% of £150k damages = £30k
£165 - 30k (20%) - 5k(disbursements) = £130k for the client. And the solicitors get their £30k under the DBA along with £5k for the disbursements they paid out.
What is the OO in CPR along with the factors to consider?
OVERRIDING OBJECTIVE - JUSTLY + PROPORTIONATE COSTS - FACTORS:
👣 - ensuring parties on equal footing, can fully participate, parties/witness can give best evidence
🧠 Court should take proportionate measures to identify vulnerable witnesses - where factor may adversely affect their participation e.g. mental/physical disability, culture, unable to understand due to language/age etc.
💰- saving expense
⚖️ - deals w case = proportionate re amount of money, importance, complexity, financial position of C/D
😀 - expeditiously + fairly
⏲️ - appropriate share of court’s resources
✅ - enforcing compliance w rules/PDs/orders
CPR 1.2 - Courts must give effect to OO
CPR 1.3 - Parties must help court to further OO – also see CSS 2.1-2.7
Limitation Period for:
a. Personal Injury
b. Fatal Accidents
c. Claims for Contribution
d. Negligence Action where facts re cause of action not known at date of accrual
e. Latent Damage
f. enforcement of judgments
g. Tort
h. Contract
Personal Injury - 📅 3 years from later of (1) Date action accrued or (2) Date of knowledge
Knowledge = significant, attributable (min in part) to wrong, identity (or identity of TP if under D’s control)
Fatal Accidents - 📅 3 years from later of (1) Date of Death or (2) Date of knowledge of dependant.
Knowledge = same as PI (above).
Claims for Contribution - 📅 2 years from date on which right accrued:
Date judgement (in civil proceeding)/award (arbitration) made
Where A agrees to make payment to B, rather than have judgement/award imposed, date agreed amount
Negligence Action where facts re cause of action not known at date of accrual non-PI claims - limitation period = later of:
(1) 📅 6 years from when cause of action accrued or
(2) 📅 3 years from when C had requisite knowledge and right to bring claim.
Knowledge = attributable to wrong (in whole/part), identity (or identity of TP if under D’s control).
🧠Note: for non-PI cases, no need for injury to be significant ⚠️
NOTE: For Latent Damage - long stop limitation date of 📅 15 years from date of latest negligent act/omission which caused all/part of damage.
Judgments - action to enforce judgement cannot be brought after 📅 6 years from when J enforceable (nor can interest be recovered after that period)
Tort - 📅 6 years after date cause of action accrued = expiry of limitation period
Contract - 📅 6 years after date cause of action accrued = expiry of limitation period
Requirements for time extension for PI and Fatal Accidents claims?
Extension - For PI and Fatal Accidents - Court can extend if equitable, balancing prejudice to C w prejudice to D. Court will look at: conduct, reason for delay; and effect of late claim on evidence.
Time extension for Disability - Limitation period?
If the claimant is under a disability at the time that the cause of action accrued, the limitation period starts to run from when the disability ends, and is:
(a) 📅 2 years in relation to contribution claims;
(b) 📅 3 years in relation to personal injury or fatal accident claims; and
(c) 📅 6 years in most other cases.
A person is under a disability whilst they are a minor (under the age of 18) or lacks mental capacity to conduct the proceedings (within the meaning of the Mental Capacity Act 2005) (s 38).
Time extension for fraud/concealment/mistake - Limitation Periods?
Where a claim is:
(a) based on fraud, or;
(b)any fact relevant to the cause of action has been deliberately concealed by the defendant; or
(c) the action is for relief from the consequences of a mistake;
Then limitation does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).
Parties to Proceedings?
Claim against Partnership - where 2/more people who were partners carried out business at time cause of action accrued
Must be brought in partnership name, unless inappropriate - Flagstones (a firm) and/or (1) Jo Flag (2) Nisha Katon
Claim against Sole Traders - John Flagstone (trading as John’s Café)
Claims against LLPs - Flagstones LLP (usually contract w clients on basis cannot sue members of LLP personally)
Claims against Companies - Rockstone Limited - employee can represent at trial is (1) authorised by Co + (2) court agrees
Claims against Trusts - trustees/executors/administrators party to claim, Bs not added as parties, but any order = binding on Bs
Claims against deceased Persons
If C is dead - if no personal rep for C, court may order claim proceed in absence of person representing estate or C, or person be appointed to represent estate of C
If D is dead and probate/admin grant has been made, claim must be brought against personal rep of the deceased, if no grant of probate/admin, claim must be brought against ‘estate of’ deceased.
Claims against Children/Protected Parties = legally incapable of pursuing claim on own behalf
Child = under 18
Protected Party = person lacking capacity to conduct proceedings within MCA 2005 - impairment of brain/mind
🧠 Adult presumed to have capacity until contrary proven. Burden on proving = w whoever asserts no capacity.
Determining capacity, lawyers must be satisfied:
Can person recognise problem they encounter?
Can person explain w sufficient clarity the problem?
Can person understand and evaluate advice received from appropriate source
Can person understand effects of choosing A over B and give effect to their chosen option.
May get GP report/get psychologic advice if legitimate concern/need to prove have capacity.
A child is referred to in the claim form as being represented by his/her litigation friend for example: Alice Brown (a child, suing by Kate Brown her mother and litigation friend)
A protected party is also referred to in the claim form as being represented by his/her litigation friend, for example: Adam Black (a protected party by Clara Dunn his litigation friend)
Litigation Friend - represent children and protected parties in civil proceedings. Appointed by court order (court of protection may appoint someone for PPs), or without court order by filing and serving a certificate of suitability demonstrating satisfy criteria:
Fairly + competently conduct proceedings on behalf
No Adverse Interests
If representing C, undertake to pay costs which child/PP may be ordered to pay re proceedings, subject to any right may have to be repaid from assets of child/PP
🧠 Note, court can also permit child to conduct proceedings without a litigation friend.
Service on Children and Protected Parties - any doc due to be served on child/PP must be served on litigation friend.
What are pre-action protocols?
each apply to a certain type of dispute - duty to follow them and make sure that saving costs and time.
What is the practice direction of pre-action conduct?
Cover all cases = procedure parties expected to follow e.g. act reasonable exchanging docs, consider whether negotiation/other form of ADR might avoid proceedings, take stock before issue proceedings etc.
If the protocols and practice direction provisions conflict, which comes first?
Pre-action protocols TRUMP PD provisions
What are the consequences of non-compliance?
Court may impose consequences -
- likely COSTS and INTEREST,
- may also STAY proceedings until relevant step completed or
- may ask for EXPLANATION OF NON-COMPLIANCE
What level of breach are court’s NOT concerned about?
Parties expected to comply with the spirit of protocols and court will not be concerend with trivial breaches.
In what circumstances might NON-compliance be justified?
Non-compliance might be justified where limitation period = about to expire, whether another reason e.g. application for ‘unannounced’ revisit to opponent’s premise to search for documents.
Pre-action Protocol for Personal Injury Claims - steps parties should take?
- Letter of Notification to potential Ds giving brief details, to enable D to notify insurer
- Parties consider any rehabilitation needs (i.e. any ongoing medical + care needs) and how to address them.
- C should write to D to give full details of the claim (Letter of Claim)
- D acknowledge letter of claim within 📅 21 DAYS
- D investigate and send full LETTER OF RESPONSE within 📅 3 MONTHS of letter acknowledging claim. If D denied liability or quantum (or both then…
- Parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement. C should send schedule of losses giving details of losses.
- Joint selection of quantum expert (i.e. medical expert), or C discloses report and D sends written questions.
When does pre-action protocol for PI claims apply?
It applies to:
- PI claims….
- Which do not fall within another pre-action protocol….
- and which are likely to be allocated to the fast-track (a value of up to £25k - the ‘spirit’ of the protocol should also be followed in higher value claims).
Steps required by the Practice direction (i.e. where specific protocol doesn’t apply and trump the PD…)
- Claimant should write to potential D to give details of the claim (LETTER OF CLAIM).
- Within a reasonable period (depends on complexity of claim) D should send a RESPONSE LETTER. Response letter must either ACCEPT claim or REJECT claim (in whole/in part - giving reasons).
- Parties should disclose key documents, engage in appropriate negotiations and make proposals for settlement.
What do proceedings START?
when 📅court issues claim form at request of C
What is claim form ISSUED?
on 📅date entered on form by court
THREE considerations for where SHOULD be started in HC (where not required by enactment and could otherwise be started in CC)?
- FINANCIAL VALUE of claim/disputed amount.
- COMPLEXITY of facts/legal issues/procedures
- PUBLIC IMPORTANCE of outcome of claim in general.
What FORM must C used to start claim?
N1 Form.
If a claim started in HC - CF must state that C expects to recover £100k+ (of £50k/+ if PI); or state which enactment requires claim to be started in HC, or state claim = to be in one of the specialist HC lists.
If a claim started in CountyC - CF must state whether or not C expects to recover 🤏more than £1000 re pain/suffering/loss of amenity
