Dispute Resolution Flashcards
1
Q
What is Alternative Dispute Resolution (ADR)?
A
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.
2
Q
What is Mediation?
A
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.
3
Q
What is Arbitration?
A
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.
4
Q
What are the Duties of Litigators Regarding ADR?
A
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.
5
Q
Difference between ADR and Litigation
A
ADR is voluntary and both parties have to consent. Litigation, both parties have greater control over the process and outcome.
6
Q
Time Limits for bringing a claim
A
Contract - 6 years
Tort - 6 years
PI - 3 years
Defamation - 1 year
Unfair Dismissal - 3 months
Longstop - 15 years
7
Q
When do claims begin to run
A
In most circumstances they begin from the day the breach occurred
8
Q
Rule for Minors
A
The timer does not run until the claimant is 18 years old
9
Q
Rule for People who lack capacity
A
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.
10
Q
What is the purpose of pre-action protocols in dispute resolution?
A
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.
11
Q
What are the potential consequences of failing to comply with pre-action protocols?
A
Failure to comply can lead to court-imposed sanctions, adverse cost orders, interest penalties, or a stay of proceedings.
12
Q
What are some common features of pre-action protocols?
A
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.
13
Q
What are the main steps in the Practice Direction on Pre-Action Conduct?
A
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.
14
Q
When might it be appropriate to issue court proceedings before completing a pre-action protocol?
A
Imminent limitation period.
Need to preserve evidence or assets.
Risk of jurisdictional disputes (e.g., defendant initiating proceedings in another country).
15
Q
What are the types of claims with specific pre-action protocols?
A
Personal injury
Clinical disputes
Construction and engineering
Defamation
Professional negligence
Judicial review
Housing disrepair
Debt claims, among others.
16
Q
What is a pre-action disclosure application?
A
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.
17
Q
What must a defendant do within 21 days of receiving a personal injury letter of claim?
A
Respond within 21 days, investigate within 3 months, and either admit or deny liability, providing reasons and disclosing relevant documents if denying.
18
Q
What are common sanctions for failing to comply with pre-action protocols?
A
Paying the other party’s costs.
Reduced or no interest on damages.
Higher interest rates on awarded damages.
19
Q
How does the court view minor infringements of the Practice Direction or Protocol?
A
The court is unlikely to penalize minor or technical infringements, focusing instead on proportional and appropriate compliance with the spirit of the protocols.
20
Q
What should a Personal Injury Letter of Claim include?
A
Summary of facts.
Details of injuries and their impact.
Hospital information with reference numbers.
Indication of financial losses and documents for disclosure.
21
Q
What are examples of documents required for disclosure in a workplace injury claim?
A
Accident book entry.
First aider and supervisor reports.
Personnel and occupational health records.
Minutes of health and safety meetings.
22
Q
What is the process for selecting an expert in a personal injury claim under the protocol?
A
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.
23
Q
How does a claimant start formal court proceedings if ADR fails or is not possible?
A
By issuing a claim form with brief details of the claim and sending it, along with the fee, to the appropriate court.
24
Q
What determines whether a claim is issued in the High Court or the County Court?
A
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.
25
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.
26
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.
27
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.
28
What are the functions of County Court hearing centres?
Managing cases, handling applications, giving directions, and hearing trials.
29
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.
30
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.
31
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.
32
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.
33
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.
34
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.
35
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.
36
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.
37
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.
38
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.
39
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.
40
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.
41
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.
42
What are the consequences if a Part 8 defendant does not respond?
The defendant cannot participate in the hearing unless the court gives permission.
43
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.
44
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.
45
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).
46
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.
47
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.
48
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.
49
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.
50
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.
51
What happens if a sealed claim form is served outside the jurisdiction?
Service must occur within six months of the date of issue.
52
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.
53
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.
54
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.
55
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.
56
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.
57
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.
58
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.
59
What is 'alternative service,' and when is it used?
Alternative service allows a claimant to apply for court permission to use non-standard methods of service, often used when standard methods are impractical or unsuccessful.
60
What must a claimant do if service is deemed ineffective?
File a Certificate of Service within 21 days if serving personally, or attempt alternative service methods as advised by the court.
61
What steps must be taken when serving a claim form on a company?
Serve the claim form at the company’s registered office or deliver it to a senior officer like a director or CEO.
62
When does a defendant have grounds to challenge service of proceedings?
If service is out of time, delivered improperly (e.g., by an unapproved method), or served on the wrong person.
63
What are the consequences of not serving the claim form or Particulars of Claim within the prescribed time limits?
The claimant may be out of time, and the proceedings might be invalidated unless an extension is granted.
64
What is the first action a defendant must take upon receiving a claim form?
The defendant must file an Acknowledgment of Service within 14 days of service to indicate whether they intend to defend the claim, contest jurisdiction, or not respond.
65
How must a defendant respond to service of proceedings?
Admit the claim
Fix and serve a defence to the claim
acknowledge service and indicate they propose to defend the claim.
66
What is the purpose of filing an Acknowledgment of Service?
Filing an Acknowledgment of Service provides the defendant additional time (28 days from the date of service) to prepare and file their defense.
67
What happens if the defendant fails to file a defense within the required time?
The claimant may request a default judgment, which grants the claimant the remedy sought without further input from the defendant.
68
What are the possible responses a defendant can include in their defense?
A defendant may:
1. Admit the claim fully or partially.
2. Deny the claim with reasons.
3. Provide a counterclaim if they believe they have a claim against the claimant.
69
When must a defendant file a counterclaim?
A counterclaim must be filed at the same time as the defense, outlining the defendant’s claim against the claimant, supported by facts.
70
What can a defendant do if they believe the court does not have jurisdiction?
The defendant can file an application to contest jurisdiction and must submit this within the acknowledgment of service period (14 days).
71
What must a defendant include when denying a claim?
The defendant must provide specific reasons for denial and any supporting evidence or arguments for their position.
72
What is a summary judgment application, and how can it be used by the defendant?
A summary judgment application can be filed if the defendant believes the claimant’s case has no real prospect of success and no compelling reason for a trial.
73
What is a default judgment, and when can it be set aside?
A default judgment is entered when a defendant fails to respond on time. It can be set aside if the defendant shows a good reason for the delay or a strong defense.
74
How should a defendant respond to a claim that lacks specific details or appears vague?
The defendant can request Further Information or file an application to the court requesting the claimant to clarify or amend their claim.
75
What is the primary purpose of a Statement of Case in civil litigation?
To outline a party’s case on liability, causation, and quantum, and to provide sufficient details for the court to identify issues early.
76
What is the overriding objective of the CPR in the context of Statements of Case?
To allow the procedural judge to identify case issues early, allocate appropriate court time, and ensure trials proceed promptly, fairly, and proportionately.
77
What key details must be included in the Particulars of Claim for a breach of contract case?
Parties and date of the agreement.
Nature and purpose of the contract.
Terms breached.
Facts of each breach.
Resulting losses.
Interest details.
The prayer (summary of claims).
Statement of truth and date.
78
What additional information is typically required in a debt claim's Particulars of Claim?
Details of the goods/services, delivery date, price, unpaid debt status, accrued interest, and usual elements like prayer and statement of truth.
79
What is the difference between admission, denial, and non-admission in a defence?
Admission: Acknowledges a paragraph is true.
Denial: Disputes a paragraph and provides reasons or an alternative case.
Non-Admission: States no knowledge of the truth, requiring the claimant to prove the allegation.
80
What must a defendant include when raising a defence of limitation?
The expiry date of the limitation period and reasons for this claim.
81
What is a Part 20 claim, and when is court permission required?
A Part 20 claim involves counterclaims or claims against third parties. Permission is required if the claim is filed after the defence, or for some claims against third-party absentees.
82
What steps should be taken when objecting to a Request for Further Information?
State reasons such as irrelevance, privilege, or disproportionality, or argue the inability to provide the requested details.
83
What is the consequence of failing to respond to a Part 20 claim?
The party is deemed to admit the claim and is bound by the court's decision regarding it.
84
What should be included when claiming interest on damages?
The basis for the claim, interest rate, start and end dates, total interest, and daily accrual rate post-end date.
85
Under what circumstances can a party be added or substituted after the limitation period expires?
If the claim was timely filed, and substitution is necessary due to mistakes, death, or transfer of interest/liability.
86
Time limit for filing & responding to part 20 claims
Filing - 14 days from date of issue of the additional claim
Responding - 14 days from date of service
87
What happens if a party fails to comply with a court direction?
The court may impose sanctions such as costs orders, evidence limitations, or striking out the claim or defence
88
What are the key aims of the overriding objective in case management?
Ensure equal footing between parties.
Save expenses.
Deal proportionately with the case's value and complexity.
Ensure cases are resolved expeditiously and fairly.
Allocate appropriate court resources.
Enforce compliance with procedural rules and orders.
89
What are the three court tracks for case allocation?
Small Claims Track (claims up to £10,000).
Fast Track (claims between £10,000 and £25,000).
Multi-Track (claims over £25,000 or complex cases).
90
What are the key features of the fast track?
Claim value between £10,000 and £25,000.
Maximum one-day trial.
Restricted to two expert witnesses per party.
Proportional costs
91
What distinguishes multi-track cases from fast track cases?
Multi-track cases usually exceed £25,000, involve trials lasting more than one day, allow more complex case management, including multiple experts
92
What is the Directions Questionnaire?
A document used to help the court manage cases by collecting information about compliance with protocols, track allocation, witnesses, and trial length.
93
What is the purpose of a Case Management Conference (CMC)?
To review progress, ensure compliance with directions, and address further steps required for trial preparation.
94
What are the cost limitations in the small claims track?
Recoverable costs are limited to fixed costs, reasonable attendance expenses, expert fees capped at £750
95
What are "unless orders," and when are they used?
Orders that impose penalties if a party fails to comply with directions. They are typically used to ensure compliance.
96
Directions in small claims court include?
Documents exchanged 14 days before hearing
no expert be used without express permission
provision for final hearing date
97
What must a party demonstrate when making an interim application?
That the application is just, fair, proportionate, efficient, and complies with court rules and procedures.
98
What is the notice period required for interim applications?
At least 3 days before the hearing
5 days if by telephone
Exceptions apply for without-notice applications (e.g., freezing orders)
99
What is the test for granting summary judgment?
The claimant or defendant has no real prospect of success.
There is no other compelling reason for the case to proceed to trial.
100
What conditions must be satisfied for an interim payment?
Defendant admits liability.
Judgment is given, but the sum is not assessed.
Claimant would likely win a substantial sum at trial.
Defendants are insured or have sufficient assets.
101
What is a freezing injunction?
A type of prohibitory injunction that prevents a defendant from disposing of assets
102
What must be proven to obtain a freezing injunction?
A justifiable cause of action.
A good arguable case.
Defendant has assets within the jurisdiction.
Risk of dissipation of assets.
103
What is a search order?
A type of mandatory injunction allowing the claimant to search the defendant’s premises for evidence at risk of destruction.
104
What are the requirements for granting a search order?
Strong prima facie case.
Serious harm to claimant’s interests.
Real risk of evidence destruction by the defendant
105
What are common grounds for discharging an injunction?
Material non-disclosure.
Failure to comply with terms.
Change in circumstances.
Facts not justifying relief.
Oppressiveness of the injunction
106
What is the difference between "disclosure" and "inspection" in legal proceedings?
"Disclosure" means identifying and informing the other party of the existence of a document, while "inspection" allows the other party to view certain disclosed documents
107
What is the duty of disclosure in litigation?
Parties must disclose and permit inspection of certain documents throughout the case until its conclusion, ensuring transparency under the CPR's "cards on the table" approach
108
What types of documents must be disclosed?
Documents a party relies on, those adverse to their case, or those supporting the other party’s case, including emails, databases, photos, and objects.
109
What are the three categories of a standard disclosure list?
1. Documents available for inspection.
2. Documents objected to for inspection (with reasons).
3. Documents no longer under control (with details).
110
When does a party have control over a document?
If they have physical possession, a right to possession/inspection, or previously had control.
111
What are some grounds for refusing inspection of a disclosed document?
Privilege, loss of control over the document, or if inspection would be disproportion
112
What are the types of privilege in legal proceedings?
Legal advice privilege
Litigation privilege
Common interest privilege
Without prejudice privilege
Public interest immunity
113
How is privilege waived in legal proceedings?
: When a privileged document is intentionally shared with the opposing party, its privilege is lost.
114
What is legal advice privilege?
Legal advice privilege protects confidential communications between a client and their lawyer made for the purpose of giving or receiving legal advice. It applies even if litigation is not anticipated.
115
What is litigation privilege?
Litigation privilege protects communications between a lawyer and third parties made for the purpose of obtaining evidence or advice for use in anticipated or ongoing litigation
116
What is common interest privilege?
Common interest privilege applies to documents shared between parties with a mutual legal interest, allowing them to protect shared information from inspection by other parties
117
What is "without prejudice" privilege?
Without prejudice privilege protects communications made in a genuine attempt to negotiate a settlement from being used in court.
118
How is public interest immunity different from privilege?
While similar in effect, public interest immunity is not a true privilege but a doctrine allowing withholding of sensitive information for public protection.
119
what are the pre-trial checklists?
Compliance with previous court orders
Approving the trial timetable
setting case management directions as required for trial
preparation of trial bundles
fixing time and date for trial
120
How many trial bundles are prepared?
One for the court and one for claimant and defendant. The claimant bares the costs of these and the bundles must be filed within 3 to 7 days before trail
121
Where would an appeal be made?
To the lower court where the decision was made or to the appeal court (court above where trial was held)
122
What are the grounds for an appeal?
Decision is wrong in fact, law, or the exercise of court's direction
Decision is unjust due to serious procedural or other irregularity in the proceedings
123
How can a party make an appeal?
Can be made orally write after judge has made their decision. If this is not accepted, they can make formal application to the courts
124
What factors can lead the court to depart from the usual costs rules?
Failure to comply with pre-action protocol
Refusal to engage in ADR
Rejection of a Part 36 offer
Exaggeration
Failure to succeed on the entire claim
125
What is the indemnity principle in legal costs?
A party cannot recover more in costs from an opponent than they are liable to pay their own lawyer.
126
What are the two bases of cost assessment?
Standard Basis: Allows proportionate costs, doubts resolved in favor of the paying party.
Indemnity Basis: No proportionality requirement, doubts resolved in favor of the receiving party.
127
What is "summary assessment" of costs?
A process where the judge determines costs at the conclusion of a hearing, often for lower-value cases.
128
When are detailed assessments used for costs?
For larger or more complex claims, with a separate hearing to determine costs months after the main case.
129
Under what circumstances can a security for costs order be granted?
Claimant resides outside the jurisdiction.
Claimant is unlikely to pay costs.
Claimant failed to provide an address or gave an incorrect one.
Claimant acts as a nominal party for another.
Claimant has moved assets to evade cost enforcement.
130
When can a wasted costs order be made?
A: If a solicitor’s conduct was improper, unreasonable, or negligent, leading to unnecessary costs.
131
What are "fixed costs" in litigation?
A: Pre-determined costs applicable to specific cases, such as small claims, low-value road traffic accidents, or fast-track trials.
132
What are the requirements for part 36 offer?
Be in writing
The offer is for a specified time but no less than 21 days
State if it relates to whole or part of the claim
State if it takes into consideration any counter offer
133
What are the effects of acceptance of part 36 offers?
Claimant accepts Defendant's offer - Defendant's liability to pay claimant's costs only runs up to the end of the offer period. Claimant pays for costs from end of offer period to day of acceptance
Defendant accepts claimant's offer - Liable to pay costs up to the day the letter accepting the offer is served, assessed on standard basis, if outside period the costs are decided by the courts
134
What are the effects of rejecting part 36 offers
Defendant offers, claimant rejects, beats offer - rejection has no effect
Defendant offers, claimant rejects, doesn't beat offer - Claimant pays defendant's costs on standard basis from relevant period expired, pays own costs after relevant period
Claimant offers, defendant rejects, doesn't beat offer - rejection has no effect
Claimant offers, defendant rejects, beats offer - interest awarded on entirety of damages at 10% from period after time for acceptance expired. Defendant pays claimant's costs on standard basis until the date of indemnity runs
135
What is the first step in enforcing a money judgment if the debtor doesn’t pay?
The creditor must identify the debtor’s assets and choose an appropriate enforcement method, often with the help of an inquiry agent.
136
What interest applies to High Court judgments?
High Court judgments carry interest at 8% per annum from the date of judgment, in addition to any interest awarded on the claim itself.
137
What interest applies to County Court judgments?
Judgments under £5,000 generally don’t accrue interest unless specified by contract, while judgments of £5,000 or more accrue interest at the High Court rate unless postponed.
138
What is a writ of control?
A High Court document authorizing enforcement officers to seize goods to satisfy a judgment debt. It is also applicable to County Court judgments transferred to the High Court
139
What can creditors not seize during enforcement?
Tools necessary for the debtor’s trade and basic household items for domestic needs, like cooking utensils.
140
What is a controlled goods agreement?
An agreement allowing the debtor to keep seized goods temporarily while promising not to dispose of them until the debt is paid.
141
What is a third-party debt order?
A court order directing a third party, like a bank, to pay money owed to the debtor directly to the creditor.
142
What is a charging order?
It gives a creditor a legal charge over a debtor's property, allowing them to seek an order for sale if the debt remains unpaid.
143
What is an attachment of earnings order?
A County Court order requiring the debtor’s employer to deduct money from their wages to pay the creditor.
144
What is a key challenge in enforcing judgments abroad?
It is particularly difficult to enforce a judgment in countries without reciprocal agreements or applicable conventions with the UK.
145
What is a freezing order?
An order preventing the debtor from disposing of assets to avoid enforcement of the judgment.
An order preventing the debtor from disposing of assets to avoid enforcement of the judgment.
