Dispute Resolution

Question 1

Arbitration

Answer 1

The decision of an independent arbitrator is binding on the parties, and enforcement can be enacted by applying to the high court.

Question 2

Time Limits

Answer 2

Basic Rule: The claimant has six years from the date of the cause of action.
Personal Injury: Three years, from the date of the cause of action, or date of knowledge of the person injury (except for children, where it’s from the 18th birthday).

Question 3

Which court to issue in?

Answer 3

Under £100,000: County Court
Over £100,000: Either County Court or the High Court (reduced to £50,000 on personal injury claims)

High Court
* The King’s Bench Division – Primarily contract/tort actions.
* Chancery Division – Disputes arising over land, trusts, contentious inheritance matters, partnership claims and company law.
* Family Division – Defended Divorces and Adoption cases.

Question 4

Service of Claim Form

Answer 4

This must be served upon the parties within four months (of six months if the D is abroad). For the claim form, it is ALWAYS deemed served, on the second business day after the step required.

Question 5

Service of Particulars of Claim

Answer 5

Within 14 days after service of the claim form (but no later than four months after the date of issue of the claim form).

Question 6

Acknowledgement of Service

Answer 6

• MUST be filed within 14 days.
• If disputing the court’s jurisdiction, it must be done on this.
• Instead of having 14 days (for service of particulars to file a defence), you will have 28 days.

Question 7

Default Judgement

Answer 7

• The particulars have been served upon the defendant AND;
• The defendant has not filed an acknowledgement, or a defence, within the time period.

Question 8

Mandatory Ground (Default Judgement)

Answer 8

If it is wrongly entered for example, it was made too early, before the time for filing an acknowledgement of service, or defence, had expired.

Question 9

Discretionary Ground (Default Judgement)

Answer 9

This is when the defendant has a real prospect of successfully defending the claim or there is some other good reason why the defendant should be allowed to defend the claim.

Question 10

Part 20 Claim

Answer 10

Indemnity: This may arise when a contractual relationship between D and 3rd party, in which the latter is obliged by the terms of the contract to indemnify D, if they are found liable for the claim.

Contribution: A claim can be made where there are joint wrong-doers, and D argues that the 3rd party is partly responsible for the harm

Question 11

Amending a Statement of Case (after the expiry)

Answer 11

The court may allow it when:
a. To add/substitute a new claim if this arises out of the same/substantially the same facts.
b. Correct a genuine mistake as to the name of a party.
c. To alter the capacity in which a party claims.

Question 12

Notice for an Interim Order

Answer 12

Service must be given at least three clear days before the court hearing. If notice would not be reasonable (i.e. may destroy docs) then should be given ‘as soon as practicable after the order is issued’

Question 13

Interim Injunctions

Answer 13

Freezing Injunctions: Restrain a party from removing their assets from the Jurisdiction.

Search Orders: Compels the respondent to allow their premises to be searched (in order to try and find documents/property, that the applicant thinks belongs to them)

Question 14

Interim Payment

Answer 14

a. The defendant has admitted liability or
b. The claimant has obtained a judgement against the defendant for damages to be assessed or for a sum of money or
c. The court is satisfied that, if the case went to trial, the claimant would obtain judgement for a substantial amount of money (other than costs).

Question 15

Summary Judgement

Answer 15

A. There is no real prospect of succeeding on the claim OR successfully defending the claim.

AND

B. There is no other compelling reason why the case should be disposed of at trial (example: the need to allow more time to be investigated, highly complicated, need to hear witnesses)

Question 16

Allocation of Tracks

Answer 16

Small Claims (Under £10,000)
Fast Track (Between £10,000 and £25,000)
Intermediate Track (Between £25,000 and £100,000)
Multi-Track (Over £100,000)

Question 17

Cost Budget (Service Time)

Answer 17

MUST Be served 21 days prior to Case Management Conference (‘CMC’)
- Once this is agreed/approved by the court, it is difficult to amend/update, therefore it should be drafted with great care.
- If the party files a cost budget late, or not at all, there are consequences for this. The court will act as if they filed a costs budget consisting of just court fees.

Question 18

Disclosure (Parts)

Answer 18

Part 1: Those within the party’s control and which they do not object to inspection.
Part 2: In the party’s control but where there is an objection to inspection, usually because they are privileged.
Part 3: Not privileged but no longer in the party’s control.

Question 19

Privilege

Answer 19

Legal Advice – Where the sole, or dominant, purpose of the communication is to seek or to give legal advice.

Litigation Privilege:
1. Passing between the client or lawyer and a third party.
2. Comes into existence when litigation was contemplated or ongoing.
3. Produced with a view to the litigation, either for the sole or dominant purpose of giving or receiving legal advice.

Question 20

Hearsay Evidence

Answer 20

This is a statement made outside of court, which is repeated in court, to prove the truth of the matter statement.

Example: A submitting to the court that when the crash occurred, B ran up to them and said “Sorry, I didn’t see you”

Question 21

Witness Summons (time-frame to be served)

Answer 21

A witness summons should be sought, and served, at least seven days before the date on which the witness is due to give evidence.

Question 22

Pre-trial checklist (time-frame to serve)

Answer 22

This is to ensure that all directions have been complied with, and must be provided no later than eight weeks before the trial.

Question 23

Basis for appeal

Answer 23

• The appeal has a real prospect of success OR
• There is another compelling reason why it should be heard.

Question 24

How long do you have to appeal?

Answer 24

In most cases the request will be made at the end of the trial, and the judge will decide whether to grant permission.
* 21 days to appeal re County Court/High Court.
* 28 days to appeal re Court of Appeal

Will need to persuade that the court was wrong OR unjust because of a serious procedural irregularity.

Question 25

General stance on costs

Answer 25

• Small Claims: Legal costs are not recoverable.
• Fast Track and Intermediate Tracks: Fixed Costs Apply
• Multi-Track: Detailed assessment of the costs will be carried out.

Question 26

Costs (standard and indemnity)

Answer 26

Standard Basis: Any costs which are dis-proportionate will be disallowed, or reduced, but generally the loser shall pay the winners costs.

Indemnity Basis: These are awarded as a penalty, usually to reflect the court’s displeasure with the manner in which a party has behaved either pre-action and/or during proceedings.

Question 27

Security for Costs

Answer 27

A. It is satisfied, it is just to make such an order.
a. One or more of the conditions in Part 25 applies i.e.:
i. The Claimant is a resident outside a 2005 Hague Convention State.
ii. The claimant is an impecunious (having little or no money) company.
iii. Claimant has taken steps to make enforcement difficult.
b. It is just to make the order, considering the strength of the claim, claimant’s ability to provide security, causes of the claimant’s impecunious etc.

Question 28

Part 36 Offer:

Answer 28

a. Made in writing.
b. Make clear it is pursuant to Part 36.
c. Specify a period of not less than 21 days (if offer is accepted, D will pay the C’s costs).
d. State whether it relates to the whole/part of claim, and/or counterclaim

Question 29

What if C wins, but does not beat an offer previously made.

Answer 29

• If the C wins, but fails to beat D’s offer, there will be a ‘split costs’ order made.

Question 30

Enforcement of Money Judgements

Answer 30

In order to obtain information about the debtor’s financial circumstances, it may be necessary to instruct an ‘enquiry agent’/apply to the court for an order for information about the debtor.