Dispute Resolution Flashcards
What is Alternative Dispute Resolution (ADR)?
ADR includes methods like mediation and arbitration that resolve disputes without a trial. These processes are typically voluntary, confidential, and aim to be more cost-effective than litigation.
What is Mediation?
Mediation is an informal process where a neutral third party helps disputing parties reach a mutually acceptable solution. It is voluntary, confidential, and non-binding until a settlement agreement is signed.
What is Arbitration?
Arbitration is a formal process where disputes are resolved by an arbitrator whose decision (award) is binding. Often stipulated by contract, arbitration provides an enforceable resolution and is commonly used in commercial disputes.
What are the Duties of Litigators Regarding ADR?
Litigators must consider whether disputes are suitable for ADR and advise clients accordingly. Courts encourage ADR to avoid costly litigation and may penalize unreasonable refusal to engage in ADR through cost orders.
Difference between ADR and Litigation
ADR is voluntary and both parties have to consent. Litigation, both parties have greater control over the process and outcome.
Time Limits for bringing a claim
Contract - 6 years
Tort - 6 years
PI - 3 years
Defamation - 1 year
Unfair Dismissal - 3 months
Longstop - 15 years
When do claims begin to run
In most circumstances they begin from the day the breach occurred
Rule for Minors
The timer does not run until the claimant is 18 years old
Rule for People who lack capacity
If they did not have capacity at the time, the timer doesn’t start until a certificate confirming capacity is produced. If they had capacity then lose it, the timer will start and continue to run from the the breach regardless.
What is the purpose of pre-action protocols in dispute resolution?
Pre-action protocols guide parties on pre-litigation conduct to encourage settlement without litigation and establish a framework for proceedings if settlement is not achievable.
What are the potential consequences of failing to comply with pre-action protocols?
Failure to comply can lead to court-imposed sanctions, adverse cost orders, interest penalties, or a stay of proceedings.
What are some common features of pre-action protocols?
Template letters for claims and responses.
Guidelines for information exchange and document disclosure.
Encouragement to use a single joint expert.
Requirement to consider Alternative Dispute Resolution (ADR).
Time limits for investigation and response.
What are the main steps in the Practice Direction on Pre-Action Conduct?
Claimant writes to the defendant with details of the claim.
Defendant responds within 14 days (simple case) or up to 3 months (complex case).
Key documents are disclosed by both parties.
Consideration of expert evidence and ADR.
Parties assess positions before initiating court action.
When might it be appropriate to issue court proceedings before completing a pre-action protocol?
Imminent limitation period.
Need to preserve evidence or assets.
Risk of jurisdictional disputes (e.g., defendant initiating proceedings in another country).
What are the types of claims with specific pre-action protocols?
Personal injury
Clinical disputes
Construction and engineering
Defamation
Professional negligence
Judicial review
Housing disrepair
Debt claims, among others.
What is a pre-action disclosure application?
It is a court application for document disclosure before proceedings to investigate a potential claim or avoid litigation, applicable even against non-parties if necessary.
What must a defendant do within 21 days of receiving a personal injury letter of claim?
Respond within 21 days, investigate within 3 months, and either admit or deny liability, providing reasons and disclosing relevant documents if denying.
What are common sanctions for failing to comply with pre-action protocols?
Paying the other party’s costs.
Reduced or no interest on damages.
Higher interest rates on awarded damages.
How does the court view minor infringements of the Practice Direction or Protocol?
The court is unlikely to penalize minor or technical infringements, focusing instead on proportional and appropriate compliance with the spirit of the protocols.
What should a Personal Injury Letter of Claim include?
Summary of facts.
Details of injuries and their impact.
Hospital information with reference numbers.
Indication of financial losses and documents for disclosure.
What are examples of documents required for disclosure in a workplace injury claim?
Accident book entry.
First aider and supervisor reports.
Personnel and occupational health records.
Minutes of health and safety meetings.
What is the process for selecting an expert in a personal injury claim under the protocol?
The claimant suggests a list of experts, and the defendant has 14 days to agree or propose alternatives. If they disagree, each party may appoint their own expert.
How does a claimant start formal court proceedings if ADR fails or is not possible?
By issuing a claim form with brief details of the claim and sending it, along with the fee, to the appropriate court.
What determines whether a claim is issued in the High Court or the County Court?
The value and complexity of the claim. Claims over £100,000 are usually issued in the High Court, but claims over this amount can still be issued in the County Court.
What are the jurisdictional restrictions for filing a personal injury claim in the High Court?
Personal injury claims must exceed £50,000 to be started in the High Court.
Where should a debt claim up to £100,000 be issued in the County Court?
At the County Court Money Claims Centre (CCMCC) in Salford, Manchester.
What types of claims are typically dealt with by the King’s Bench Division of the High Court?
Defamation
Breach of contract Negligence
Personal injury
Land possession
Non-payment of debts.
What are the functions of County Court hearing centres?
Managing cases, handling applications, giving directions, and hearing trials.
When is a claim transferred from the High Court to the County Court?
If the High Court deems the County Court to be the more appropriate venue based on claim value or complexity.
What types of cases are typically handled by the Technology and Construction Court (TCC)?
Claims involving engineers architects, and surveyors, Environmental claims Local authority duties related to land and buildings.
What types of claims does the High Court King’s Bench Division handle?
International trade Banking and financial services
Insurance and reinsurance
Import and export contracts.
What types of claims are typically handled by the High Court Chancery Division?
Equity and trusts
Commercial fraud
Intellectual property Land disputes
Business disputes Bankruptcy and regulatory work.
What happens to a claim after a defence or admission is filed in court?
The claim is usually transferred to the hearing centre local to the defendant’s address or the claimant’s preferred hearing centre if the defendant is a company.
What factors might lead to issuing a claim in the High Court instead of the County Court?
High financial value, Complexity of the facts, legal issues, or procedures, Public importance of the outcome.
What is the significance of the Royal Courts of Justice (RCJ)?
It is the central location of the High Court in London, but claims can also be issued in District Registries across the UK.
What key information must be included in a claim form?
The claim form must include names and addresses of the parties, details of the claim, the remedy claimed, the value of the claim, and the claimant’s preferred court for hearings.
How is the value of a claim important in the legal process?
The value determines the court track for the claim, the court fees, and whether the case is heard in the County Court or High Court.
What is the ‘Particulars of Claim’?
It is a detailed written statement of the nature of the claimant’s case, served with the claim form or within 14 days after service.
What is a ‘Statement of Truth’ in a claim form?
A declaration signed by the claimant (or their solicitor) confirming that the facts in the claim form are true.
What is a ‘Part 8 Claim’?
A claim used when there is no substantial dispute of fact, often for legal approvals like settlements for minors or incapacitated individuals.
What is the time limit for serving a sealed claim form within the UK jurisdiction?
A sealed claim form must be served within four months of the date of issue.
What are the consequences if a Part 8 defendant does not respond?
The defendant cannot participate in the hearing unless the court gives permission.
What should a claimant do if they want the court to serve the claim form?
The claimant must send enough copies of the claim form for all defendants, a copy for the court file, and attach relevant documents like the Particulars of Claim and Notice of Funding.
How is a claim form issued by the court?
The court seals the claim form with its official seal and assigns a claim number, confirming the issuance with a Notice of Issue.
What is the purpose of including a statement of value in the claim form?
To assist in determining court allocation, fee calculation, and the type of claim (e.g., specified or unspecified).
When must witness evidence be served in Part 8 claims?
Witness evidence must be served along with the Part 8 claim form, including a signed statement of truth.
What is the court fee for claims exceeding £200,000?
The court fee is a fixed amount of £10,000 for claims exceeding £200,000.
What are the options for including the Particulars of Claim?
The claimant may include them on the back of the claim form or serve them separately within 14 days after service.
What happens if a sealed claim form is not served within four months?
Failure to serve within this timeframe can result in the claim being struck out unless the court grants an extension.
How does the claimant’s preferred court impact proceedings?
The claimant indicates the court they prefer for hearings on the claim form, guiding initial court allocation.
What happens if a sealed claim form is served outside the jurisdiction?
Service must occur within six months of the date of issue.
What documents must the court include when serving proceedings by post?
The claim form, Particulars of Claim (if provided), medical reports (if applicable), a schedule of losses, notice of funding, and a response pack.
Under what conditions can service of a claim form be carried out by fax?
Only if express consent has been given in writing, along with the fax number specified by the recipient.
When is a claim form deemed to be served under the CPR?
On the second business day after the step required for service (e.g., posting or emailing) has occurred.
What must a claimant do if the defendant’s address is unknown?
Take reasonable steps to locate the defendant and serve at the last known address or apply for alternative service.
What are examples of invalid service of a claim form?
Serving a photocopy instead of an original sealed copy, serving out of time, or serving on the wrong individual or address.
What is required for service of a claim form by email?
Express consent and provision of a specific email address for service; simply having the email address on correspondence is not enough.
What is the timeframe for serving the Particulars of Claim if it is not served with the claim form?
It must be served within 14 days of the service of the claim form and within the initial four months’ validity period of the claim form.
