Dispute Resolution Flashcards
What does a claimant have to prove to be successful in an application for summary judgment?
What is the deadline for service of a claim from on a defendant after issuing a claim?
How would an impending limitation period affect it?
CF within 4 months of issue
claimant need only issue the claim form, not serve it, by the end of the limitation period.
The claimant issued proceedings after the defendant failed to respond to the letter of claim. The defendant’s solicitor must now respond, but no investigation has been done. Numerous witnesses need to be interviewed, and visiting the accident scene is likely required. Completing the investigation and filing a defence within the standard timeframe is impossible.
Which of the following outlines the best steps for the solicitor to take, in addition to acknowledging service?
Request the claimant to allow him an additional 28 days (56 days in total from service of the Particulars) in which to file a defence.
D must respond to a claim within 14 days of the deemed date of service of the Particulars of Claim. One possible response is an acknowledgment of service with an indication they will file a defence, which ordinarily must then be filed within 14 days of the acknowledgment (a maximum of 28 days from the deemed date of service of the Particulars).
If C refuses the extension, D can apply to the court for additional time.
What is the shortest period a defendant may give a claimant to accept an offer for it to take effect as a Part 36 offer?
The relevant period with respect to a Part 36 offer is the period for which the offer must stay open. The minimum is 21 days from the date of deemed service.
A claimant obtains judgment against a defendant for £50,000 and is looking to apply for a charging order against a building which the defendant and his business partner own as joint tenants.
What is the effect of the charging order against the building?
It will take effect as an equitable mortgage, but the claimant must apply for an order of sale to force a sale of the property.
A charging order ranks as an equitable mortgage. That is, it gives the creditor the right to apply for an order for sale, even if the land is in joint ownership. (A) and (B) are incorrect, as the charging order will rank as an equitable, not a legal, mortgage.
What is public interest immunity in relation to the duty of disclosure?
It is possible that the argument of public interest immunity will prevail. A party may withhold disclosure of a document on grounds of public interest immunity if disclosure may harm the nation or the administration of justice. Ultimately, to prevail, the driver will have to provide information to the court which will balance the risk to public interest against the value that disclosure may have to the other party.
What is an application for specific disclosure and when is it used?
A party who is unhappy with disclosure because they have reason to believe relevant documents exist which were not disclosed may make an application for specific disclosure. However, before making the application, the party should write to the other party, asking for the documents and explaining, among other things, why they believe the party has the documents and why it is reasonable and proportionate for the documents to be disclosed. Here, the claimant has good reason to believe the emails exist, as the defendant referred to them in his Statement of Case.
Can you automatically use an expert witness?
No you must always seek permission of the court first.
What should a solicitor do if a witness is unable to attend but a party wishes the court to consider the evidence they would have given?
Must serve notice to rely on hearsay evidence.
The solicitor should serve a notice to rely upon hearsay evidence. If a witness is unable to attend but a party wishes the court to consider the signed statement of the witness at the trial, the court will treat this as hearsay evidence. A judge will not place as much weight on hearsay evidence. This is because the other side will not have the opportunity to question the witness in cross-examination and thereby test the strength of the evidence.
what should they do - In a negligence claim, the claimant serves a hearsay notice for a director’s evidence as the director can’t attend trial. The claimant wants the court to consider the evidence, but the defendant doubts its truthfulness and knows the director’s location.
Make an application within 14 days of service of the notice to call the witness to court for the trial, together with a notice to attack credibility.
The appropriate course of action is to make an application accompanied with a notice to attack credibility. They can only do this if they know where the witness lives.
A claimant initiated a simple breach of contract case against a defendant, which was allocated to the FAST track. Settlement efforts were unsuccessful, and all necessary pre-trial steps have taken place.
When must the trial bundles be filed?
The claimant must prepare and bear the cost of a bundle for the court and one for each party. They must be filed between three and seven days before the trial is to take place.
What is the maximum length for a pre-trial review case summary on the fast track?
500 words
Define standard disclosure
parties must disclose relevant documents (that is, documents upon which they will rely, as well as documents which affect their case or their opponent’s case) that are or were within their control.
For a claim on the multi track, when must each party file their disclosure report?
14 days before the first CMC
How can you file the Particulars of Claim for a specified debt sum of £2k?
TWO POSSIBLE OPTIONS - It is true that the claim is a debt claim (that is, a claim for a specified sum), and the Particulars of Claim are normally included on the claim for debt/specified claims, as they tend to be short and simple, but they may still be served in a separate document. In other words, the Particulars of Claim (that is, a written statement setting out the details of the claimant’s case) may be in a separate document or on the back of the claim form. If drafted in a separate document, it must be served within 14 days of the claim form.
If a defendant wishes to dispute validity of service, what should they do?
If a defendant proposes to argue that service was not valid, the appropriate course of action is to file the acknowledgement of service stating that the validity of service is not accepted. Then the defendant should lodge an application within 14 days seeking an order to have the claimant re-serve the proceedings in a proper manner. This may be difficult for them if the time period for service has expired.
What is a Part 20 claim and when should it be used?
If a defendant believes someone who is not presently a party to the claim is liable (at least in part) for the claimant’s loss, the defendant should deny liability and issue a Part 20 claim (that is, a claim against the third party) within the proceedings. That non-party thereby becomes a third party in the claim and can be held liable for the claimant’s losses.
What is the CCMC in Salford?
Where a claim for a specified debt is issued.
Penalty for failure to comply with pre-action protocol?
When the court believes that the claim should have been capable of resolution without the issue of proceedings, it may order the defendant to pay interest on the claimant’s damages at a rate higher than normally would be allowed. The court may also order the defendant to pay the claimant’s costs on an indemnity basis, that is, the court giving the benefit of the doubt to the receiving party as to whether the costs were reasonably incurred.
A claim is being pursued under the personal injury protocol. The defendant responds to the letter of claim by admitting negligence but disputing quantum.
According to the protocol, what is the earliest point at which the claimant can issue proceedings?
The claimant must serve the medical report and an up-to-date schedule of loss and allow 21 days for the defendant to make an offer. If no acceptable offer is forthcoming, they are free to issue proceedings.
When can a claimant apply for summary judgment?
As soon as the defendant files an acknowledgment of service, it is open for the claimant to make an application for summary judgment. If the claimant applies for summary judgment following acknowledgment of the claim and includes written evidence to support the application, the defendant must serve evidence in response at least seven days before the hearing on the application.
Can the court force parties to engage in ADR?
No they have no power to stop anyone from engaging in litigation first but they can then stay proceedings and get them to engage in ADR if it is reasonable cost wise etc.
For cases in which less than £50,000 is sought, what is the requirement for them in terms of when they should file cost budgets?
For cases in which less than £50,000 is sought, the requirement is for both parties to file their budget with the Directions Questionnaire.
Which judgments is interest not payable on?
Normally interest is not payable on County Court judgments under £5,000 unless the claim arose in contract and the contract provides for interest. As the judgment here is for only £4,500, it does not meet the amount requirement for the recovery of interest.
When must a Notice to Prove be served by? (notice to get the other party to prove authenticity of evidence)
The claimant must serve the notice no later than the last date available for the exchange of witness statements. If it had been the case that the defendant had served the document late in the case, after witness statement exchange, the claimant must serve the notice within seven days of disclosure.
What are the three sections of the disclosure list?
- documents in the party’s control that they do not object to inspection of
- documents in their control which they do object to inspection of + reasons
- documents no longer in their control + stating where they are now
Under the Personal Injury Protocol, which of the following is correct with respect to the defendant’s response to the claimant’s letter of claim?
Responses
The defendant must respond within 21 days. They may indicate that they desire to investigate, in which case they have 3 months to admit or deny the claim.
