Dispute Resolution Flashcards
1
Q
Limitation period - breach of contract
A
6 years from date of breach (deed is 12)
2
Q
Limitation period - Tort
A
6 years from date damage is suffered
3
Q
Limitation period - personal injury
A
3 years from later of (1) date damage is suffered, or (2) date of knowledge
4
Q
When does limitation period time stop running?
A
When the court receive the claim form
5
Q
Limitation periods: latent damage
A
6 years from date of damage, 3 years from date of knowledge of damage, in either case not longer than 15 years from date of damage.
6
Q
Concept of clear days
A
Do not count the day of the trigger action, and do not count last day if that day is a hearing etc. Count weekends and bank holidays (except for serving a claim form (4 months from the day)
7
Q
When adding / substituting parties, what needs to be done?
A
To change the proceedings to include correct party, this needs to be done by consent of other party, or application to court (Form N244 application notice) for permission to amend proceedings
8
Q
Difference between claim form inside v outside jurisdiction in terms of timing
A
Inside: served (ie step completed) within 4 months of the calendar day on which claim is issued by court, or within 6 months if outside.
9
Q
Rule on service of claim form
A
Second business day after relevant step (personal service, posting, or emailing) excluding bank holidays as not business day.
10
Q
Rule on service of particulars of claim
A
14 clear days after date of service of the claim form if not served with claim form. However watch for the 4 month ticker.
11
Q
Deemed date of service of particulars of claim - email / personal service
A
Before 4:30, same day. After, next business day
12
Q
Deemed date of service of particulars of claim - post
A
Second day after posting if business day, if not - next business day.
13
Q
Deemed date of service of particulars of claim - leave at known address
A
If before 4:30, same day. If not, next business day.
14
Q
How to respond to a request for more information
A
In writing, signed with the a statement of truth and then submitted to court
15
Q
How do you make amendments once limitation period has expired
A
With leave of court but only granted to add or substitute new claim on same facts, correct a mistake, or alter capacity in which part claims
16
Q
Why is the overriding objective and the implications?
A
Dealing with cases justly and at proportionate cost, meaning active management:
1) encouraging cooperation
2) promoting ADR
3) deciding issues early and which need investigating
4) deciding order of issues
17
Q
What are the thresholds for track allocation (£)
A
Small claims track - equal to10k or less (provided total for PI pain and suffering is no more than £1500)
Fast track - between 10,001k and 25,000k
Intermediate track - 25,001k and 100,000k
Multi track - excess of 100k
18
Q
Tracks allocation thresholds (days)
A
Fast track. - no more than 1 day
Intermediate track - no more than 3 days
Multi track - more than 3 days
19
Q
Track allocation thresholds (experts)
A
Fast track - 1 per party, 2 fields of expertise
Intermediate track - 2 experts, 3 party limit
Multi track - more than 3 experts and parties
20
Q
Timeline on completing directions questionnaire: small claims v other track & their purpose
A
Small track - 14 days of notice
Other track - 28 days of notice
Helps to allocate track
21
Q
Fast / intermediate track directions timeline
A
Disclosure - 4 weeks
Witness statements - 10 weeks
Expert reports - 14 weeks
Sending pre trial checklists - 20 weeks
Filing pre trial checklists - 22 weeks
Hearing - 30 weeks
22
Q
What is hearsay in civil courts?
A
A written or oral statement prepared outside of court (otherwise than by a person giving their own first hand evidence), repeated to the court as evidence that the issue it is referring to is true.
23
Q
How is hearsay treated in civil courts?
A
Generally admissible but more weight attached to first hand than second hand hearsay - must be relevant and of fact rather than opinion
24
Q
What is procedure for admitting hearsay evidence?
A
Hearsay notice must be served to other side explaining why witness could not attend no later than latest date for serving witness statement (less weight conferred if not served properly)
25
How to respond upon receiving notice of hearsay and a witness statement in terms of timings / content
Some timelines to be aware of, within 14 days of receiving the notice:
1) give notice to adduce evidence relevant to undermining the credibility of the witness making the statement
2) submit application to cross examine the witness
or
1) Don't respond, make submissions at trial
2) Serve request for further info.
26
What is always required when seeking to submit expert evidence and how justified?
Court permission and justified by "reasonably required to resolve the proceedings" (probative, useful, cogent, cost is proportionate)
27
If submitting oral expert evidence in small claims or fast track, what are the limits on this?
It’s limited to 1 expert per party, 2 expert fields
28
What are the requirements for an expert’s report?
1) Addressed to the court
2) Provide full details of expert’s qualifications
3) Set out evidence and investigations relied on
4) Statement that expert understands duty to the court
5) Material description of instructions given by party to expert
6) Verified by a statement of truth
29
What orders can the court make vis a vis expert evidence?
1) Whether allowed or not
2) Limit number of experts / use single joint expert
3) Preclude oral evidence in favour of written reports
4) Limit amount of expert fees
5) Limit issues discussed
6) Can make the experts talk to each other where difference of opinion to identify issues and reach opinion. Can direct a statement be prepared for directed issues with agree / disagree and the reasons for this. Then give oral evidence at trial.
30
fWhen are single joint experts used?
Norm in fast track cases, court will have regard to what is reasonably required to resolve proceedings, having regard to proactive case management / cost savings.
General view: used in less important / less controversial claims
Instructed by the court to prepare on behalf of 2 or more parties
31
What is a witness summons and what are the rules regarding serving it?
Witness summons is a document issued by the court compelling them to either attend court to give evidence or produce a written statement
Binding if served 7 days before witness is required to attend court
32
What is standard disclosure?
Standard disclosure involves submitting documents on which you rely, adversely affects your case, supports the other party’s case and is required to be disclosed by the relevant practice direction
33
What are the differences in disclosure for each track?
Multi track - more flexible than just standard disclosure but can be used.
Fast track - standard disclosure
Small claims - only need to disclose docs on which you rely
34
The duty to disclose is limited to those documents within the party’s control, what does this mean?
1) Physical possession
2) Right to possession
3) Right to inspect or take copies
35
What are the options for non-party disclosure and when is this possible?
1) apply for a non party disclosure order when (i) documents likely to support your case or adversely affect case of opp and (ii) document necessary to dispose of case fairly and to save costs
2) witness summons
On (1) court has discretion whether or not to grant ….
ONLY ONCE PROCEEDINGS HAVE BEGUN
36
What’s included in the list of documents to be disclosed (control)?
1) documents which are in control and ready for inspection
2) documents in control but usually waived by legal or litigation privilege or some reason they cannot see it
3) documents out of control + reasons why
37
What needs to be in a disclosure statement?
Confirms party has conducted disclosure with honesty and completeness; sets out extent of search made to locate documents with limitations; and certifies the party understands the duty to disclose the documents.
Signed by the person conducting the search
38
What needs to be in a disclosure statement?
Confirms party has conducted disclosure with honesty and completeness; sets out extent of search made to locate documents with limitations; and certifies the party understands the duty to disclose the documents.
Signed by the person conducting the search
39
What are without prejudice communications and do they need to be disclosed?
They are communications regarding settling the dispute (disclosable but inadmissible)
40
How can privilege be waived?
Inadvertent disclosure (if party reasonably thought they could see them), however subject to subjective and objective test re receiving solicitor's OBVIOUS MISTAKE. AL FAYED
If its mentioned in statement of case, witness statement, witness summary
By losing its confidentiality
Collateral waiver
41
What is the minimum amount of time the court will give the parties prior to filing the disclosure report
14 days prior to first CMC
42
What are the effects of not filing the directions questionnaire on time?
Both parties - case will be struck out (unless filed within 7 days of the subsequent order by the court)
One party - Court will fix a hearing to determine trial venue, place etc
43
Rules on filing the trial bundle
Claimant prepares bundle and files it at court not more than 7 days nor less than 3 days before trial and also served on defendant
44
What are the rules on serving a witness summons?
The party must file two copies of the summons at court, the court will then issue the summons. The court will usually serve it (must be at least 7 clear days before trial). Not to attend is contempt of court.
45
What is the general rule on hearings?
1) Make initial application at oral hearing
2) If refused make written application to appeal court
46
Your opp is a district judge in the county court innit - who you appealing to blud?
Circuit judge
47
Your opp is a master/district judge of High Court, who you appealing to fam?
High court judge
48
Your opp is a circuit judge, who you appealing to fam
High court judge
49
Man’s opp is a high court judge, who you appealing to fam?
Court of appeal
50
Grounds for first appeal
1) Real prospect of success, or
2) Some other compelling reason
51
Difference between standard basis and indemnity basis in terms of costs
For standard costs assessments, disproportionate costs are rejected even if reasonably incurred. Doubt in favour of paying party.
On an indemnity basis costs are reimbursed regardless of whether proportionate - doubt in favour of receiving party.
52
What is involved in a standard basis costs order?
1) Costs reasonably incurred / reasonable in amount
2) Proportionately incurred / proportionately in amount relative to value of claim, complexity of litigation, value of non monetary relief, additional work generated by conduct of parties, additional work generated by conduct, reputation / public performance and existence of vulnerable party or witness.
3) Doubt resolved in favour of paying party
Averages 60-70%
53
What is involved in an indemnity basis costs order?
1) Costs reasonably incurred and reasonable in amount
2) No proportionality
3) Doubt in favour of receiving party
Averages 70-80%
54
What is that significant of a costs management order?
If the order has costs assessed on the standard basis, it cannot depart from the amount of payable costs agreed in the budget unless there is good reason to do so
55
What’s the difference between interim costs order in fast track & intermediate track v multi track?
Fast and intermediate - fixed at £750
Multi track - if payable in any case, court will make an assessment after the hearing, budgets having been submitted and the costs are payable within 14 days
56
Part 36 offer but claimant rejects and is awarded equal to or less than amount offered
+ Claimant receives damages and costs on standard basis up to end of relevant period
- Claimant must pay D’s costs from the expiry of the relevant period + interest and is therefore punished
57
Part 36 offer but defendant rejects and is awarded damages equal to or more than
1) Defendant pays claimant costs on indemnity basis from expiry of relevant period and interest on those costs 10% above base rate
2) 10% on damages up to £500,000, then 5% of any amount above (limit of £75,000)
58
What is a Tomlin order?
A type of consent order that stays proceedings on agreed terms, made up of two parts:
1) Consent order - stays proceedings with liberty for a party to go back to court to enforce agreement in the event of non compliance
2) Schedule - containing the terms of settlement (in a separate schedule, annexed agreement or clearly defined document)
59
Pre-action: letter of claim
Should include the basis on which the claim is being made + summary of the facts + money and how calculated
60
Pre-action: response to letter of claim
Replies should include acceptance, or non acceptance + explanation of facts.
Whether they are issuing a counterclaim.
Must be responded to within 14 days for straightforward cases, or 3 months for complex
61
Rule on replying to defence / counterclaim
No obligation to, but may seek to clarify things. Cannot raise new causes of action, must be filed at court with directions questionnaire (28 days from allocation notice)
62
What is a part 20 claim
Claim by defendant against 3rd party.
63
Rules regarding part 20 claims in terms of court leave
If counterclaim against D and another party, needs leave from court.
If seeking contribution or indemnity from another party, only need leave from court if claim form not served at the same time as defence
64
Rule on amending statement of case and considerations
CPR 17 - can do so with leave of court, must apply. Depends on extent of prejudice to other party, and the earlier the application the more likely to be accepted.
Remember no litigant may argue a different case at trial than the one he has pleaded
65
When can you request for information and what are your options?
You can request where proportionate and reasonably necessary.
If you don’t get a response, you can apply to the court where they deem it proper and proportionate.
66
What will the court consider in an application to amend the proceedings? What’s the CPR section and application form needed?
Depends on whether the other party will be significantly prejudiced - earlier the more likely.
17, N244
67
What should be done with new evidence?
This should be filed as soon as possible to reduce risk of set trial date being adjourned to allow other side to consider the new evidence
68
Examples of sanctions - late witness statement, late expert’s report
CPR 32.10 - witness may not be called to give oral evidence unless permission granted by court
CPR 35.13 - failure to disclose expert’s report, may not use report at trial or call expert to give evidence, unless with court permission
CPR 31.21 - cannot rely on any document which is failed to be disclosed
69
Difference between applications for extension - in-time v retrospective
In-time not subject to strict relief from sanctions test (proportionate and just)
So if opponent cannot agree, apply to court early
70
What are the expert’s three Is
Integrity, Independence, Impartiality
71
What powers does the court have over experts?
1) They can at any stage direct a discussion between the experts to ID the issues, reach an agreed opinion, specify issues they must discuss
2) They can reject one expert in favour of another
3) Failure to disclose a report means they cannot use it at trial
72
Burden of proof - dispute resolution
Claimant proves case against defendant, balance of probabilities
73
Key requirements of a witness statement
- own words / own language
- occupation, work address, position, name
- process by which prepared (face-to-face, telephone)
- exhibits referred to should be numbered
- pages numbered consecutively
- statement of truth
74
What does a statement of truth do?
Witness believes facts of it are true - court can direct it to be inadmissible if no statement of truth
75
What pre-action steps need to be taken? (Non-protocol)
Letter before claim, response within 14 days, disclose key docs, comply with specific protocol timing
76
County court claims - jurisdiction
£100,000 or less
Personal injuries less than £50,000
Unless reason to believe claim should be dealt with in High Court (i.e. importance to public)
77
High Court claims - jurisdiction (equity / probate)
Equity claims exceeding £350,000
Probate claims for above £30,000
78
Rule on assessing financial value of claim
Court will disregard claims for interest, contrib. negligence and costs
79
Pros and cons of higher track
More flexible procedures as evidence gathering more extensive, however more expensive
Circuit judge (as opposed to district) therefore more expertise
80
Pros and cons of lower track
Small claims you can't recover many costs
Fast-track, recoverable costs are limited
81
What is part 7
Dictate rules on serving claim form
82
Effect of serving acknowledgment of service
Get another 14 days up (so 28 days in total)
83
If counterclaim not served with defence, what do you need?
Leave from court
84
Requirements for request for more info
Needs to be proper and proportionate in circumstances of the case
85
Consent Orders v Tomlin Order
Consent orders dispose of the proceedings on terms set out by court
Tomlin orders stay proceedings
86
Key differences between Consent v Tomlin Order
look at preptackle
87
Tips to avoid sanctions
1) Consult with court
2) Buffer order for 28 day extension provided doesn't risk court date slipping
3) Early application (not subject to relief from sanctions test)
88
Requirements for a part 36
(1) It must be made in writing
(2) State whether it takes into account any counterclaim;
(3) Specify a period of not less than 21 days
(4) State whether it relates to the whole of the claim or part of it or to an issue that arises in the claim and, if so, which part or issue; and
(5) Must make clear that it is pursuant to Part 36
89
Standard disclosure v standard directions
Standard directions dictate the 14 day before trial timeline for disclosure in the fast track (standard disclosure doesn't apply as only disclosing docs you rely on)
90
Without prejudice
Communications generated as a genuine attempt to settle an existing dispute
91
Relying on documents not properly disclosed
Can be done and court will take into account circumstances and whether party willing to cover costs of late appearance and adjournment of trial
92
Documents being withheld
1) Request the document from them
2) Specific disclosure application
3) Serve notice
4) Strike out / unless order
They may be liable for contempt proceedings
93
Substance of witness statements
1) Covers all facts which must be proved as cannot rely on anything not referred to in statement
2) Specify statements made from witnesses knowledge vs information / belief
3) Less weight given to hearsay evidence
94
What to do with witness statement once prepared
Court orders it to be served on other parties + may make you file it. If you want to rely on it at trail, must be called to give oral evidence.
Also watch out for the timings as won't be able to rely on it if late unless with court permission.
95
What is the presumption regarding experts
That their evidence is to be given in a written report
96
When do you need permission to serve witness summons
1) less than 7 days before date of trial
97
What to consider when summoning witnesses
Asked to attend court, cooperative?
98
Steps to take when hearsay adduced
1) Was a hearsay notice given and proper chance to respond?
2) Adduce evidence re: credibility of maker
3) Submissions as to why shouldn't be given weight, if admitted, court has regard for circumstances.
- contemporaneous statements
- multiple hearsay
- motive to conceal / misrepresent
- edited account
99
General costs principle
Loser pays winners costs (subject to CPR 44 in which court takes into account conduct of parties)
100
Advice to client on costs generally
That they are his responsibility! But court can award
101
Appeal - process
Application to:
(a) lower court at hearing at which decision made
or
(b) appeal court in an appellant's notice
Must apply within 21 days of the decision
102
Appeal - advice to client
Can be costly and lengthy process - you may need to pay other party's costs if you fail
103
Enforcement - oral examination
Information hearing - can order judgment debtor to attend court to provide information to location and value of assets (failing to attend is contempt of court)
104
Method of enforcement - party owns goods
Taking control of goods procedure - an enforcement agent enters premises to sell goods and apply proceeds in satisfaction of judgment. Be aware of agent's fees.
105
Methods of enforcement - party receives wages or salary
Attachment of earnings order - employer transfers specified amount of salary on a regular basis until judgment satisfied
106
Methods of enforcement - party has savings
Third party debt order - debtors are owed money by another party (e.g. a bank account)
107
Methods of enforcement - has assets
Charging order over land / securities (becomes secured creditor), and trying to sell up.
Three steps:
1) obtain interim charging order to register and protect interest
2) obtain final charging order - precursor to order for sale
3) Order for sale
108
Methods of enforcement - income from assets
Appoint a receiver CPR 69
109
Litigation privilege
1) litigation reasonably contemplated
2) dominant purpose of communication is to prepare for litigation or seek legal advice
110
Litigation privilege
1) litigation reasonably contemplated
2) dominant purpose of communication is to prepare for litigation or seek legal advice
111
Legal advice privilege
1) Communication
2) Confidential
3) Must be with a lawyer
4) Dominant purpose is to provide or obtain legal advice
112
Legal advice privilege
1) Communication
2) Confidential
3) Must be with a lawyer
4) Dominant purpose is to provide or obtain legal advice
113
How to deal with a limitation period soon expiring
Issue and serve proceedings, then apply to stay
Standstill agreement with defendant to extend or suspend limitation period
Issue the claim but delay service
