dispute resolution

Question 1

what is the overriding objective?

Question 2

what is the general costs rule?

Answer 2

unsuccessful party pays costs of successful party

Question 3

what is costs in any event?

Answer 3

the party whose favour this order is is awarded their costs (of the interim hearing) regardless of the overall outcome of the case

Question 4

if costs order is made what is the time frame that it must be paid by?

Answer 4

within 14 days

Question 5

what is assessed costs?

Answer 5

court needs to be involved with deciding the amount payable (unless parties agree).

either a summary assessment or detailed assessment carried out by the court prior to costs order being made

Question 6

when is a summary assessment used (costs)?

Answer 6

used in fast-track proceedings and other cases where hearing has lasted no more than one day

Question 7

when is a detailed assessment appropriate (costs)?

Answer 7

any other case where costs fall to be assessed (not fast track or lasting no more than one day)

Question 8

what is costs in the case?

Answer 8

the person who wins the case overall will recover their costs from the interim hearing

Question 9

what is costs reserved?

Answer 9

decision about who pays costs of the interim hearing is put off to a later occasion.

Question 10

what is C’s or D’s costs in the case?

Answer 10

if that party is successful and receives an order that it should be entitled to its costs at end of trial, it can include costs of interim application.

Question 11

what is no order as to costs?

Answer 11

each party will bear its own costs for the hearing

Question 12

what are the advantages of arbitration?

Answer 12

formal process that results in binding decision.
allows parties to choose arbitrator and can be conducted confidentiality

Question 13

what is expert determination (ADR)?

Answer 13

involves an expert making a binding decision on technical matters but it might not address all aspects of the dispute comprehensively and lacks the formal structure of arbitration

Question 14

what is med-arb?

Answer 14

the parties initially agree to attempt mediation for a mutually agreeable solution and if unsuccessful proceed to arbitration for a binding decision

Question 15

when does the limitation period begin for a personal injury claim?

Answer 15

from the date of knowledge - when C knows enough to realise the injury is significant and that it is attributable in whole or part to the act/omission which is alleged. (eg, confirmation of diagnosis and causation)

Question 16

what is mediation?

Answer 16

confidential process intended to facilitate the resolution of dispute through the medium of impartial third party (mediator) = usually in different rooms (not binding)

Question 17

what is the difference between expert appraisal and expert determination?

Answer 17

expert appraisal doesnt give a binding decision whereas expert determination does.

Question 18

what will the court do if a party is not compliant with pre-action protocols?

Answer 18

they will take it into consideration when considering issue of costs or stay proceedings to encourage compliance with pre-action protocols. it can lead to sanctions, especially if it affects the other party and the efficient conduct of the proceedings

Question 19

if claim is under £100,000 which court should it be issued in?

Answer 19

county court

Question 20

what circumstances will the court grant an extension of time to serve the claim form (if limitation period has expired eg, 4 month period)?

Answer 20

court will grant an extension if C has taken all reasonable steps to comply and the application was made promptly.

Question 21

when the particulars of claim are NOT served what the claim form - what is the time frame it must be served after service of the claim form?

Answer 21

must be served within 14 days after service of the claim form

Question 22

if a doc is served by email (instant method) when are they deemed served?

Answer 22

deemed served on same day if sent before 4:30pm on a business day

Question 23

when is the claim form deemed serve? (counting time rules)

Answer 23

deemed served on the second business day after the relevant step (eg, leaving doc at DX)

Question 24

If a doc is served via 1st class post - when are they deemed served?

Answer 24

served on second business day after posting

Question 25

if claim form is put through a letter box - when is it deemed served?

Answer 25

claim form is deemed to be served on the 2nd business day after posting the claim form through the letter box - as claim form is deemed served on second business day deer completion of the relevant step

Question 26

when must a D file an acknowledgement of service after service of PARTICULARS OF CLAIM?

Answer 26

within 14 days after service of the particulars of claim

Question 27

if the D fails to acknowledge service and indicates intention to defend but fails to file defence - what are the consequences?

Answer 27

C can apply for a default judgment

Question 28

when can the court set aside a default judgment?

Answer 28

if party has a real prospect of successfully defending the claim or if there is some other good reason why judgment should be set aside. (additionally application must be made promptly)

Question 29

when must the court set aside a default judgment?

Answer 29

when there was a procedural error in obtaining it or the court made an error

Question 30

if there are 2 Ds and D1files intention to defend but D2 doesnt respond what can C do?

Answer 30

C can apply for a default judgment against D2 if the claim against them can be dealt with separately

Question 31

what is the overall max amount of time that a D has to defend a claim if the D and C agree an extension of time?

Answer 31

up to 56 days

because has 14 days from being served particulars of claim then if acknowledge gives an extra 14 days so 28 days total and then C and D can agree to extend for further 28 days making a 56 day total

Question 32

what is the rule on counting time if the end of the period is defined by reference to an event?

Answer 32

the day on which that event occurs is not included

Question 33

if the specified period is 5 days or less = what are the rules on counting time?

Answer 33

Saturday, Sunday, bank holiday, Christmas Day or good Friday DO NOT COUNT

Question 34

if a deadline relates to doing an act at the court office and deadline for the day is when the court is shut - when is service deemed as being on time?

Answer 34

the act is treated as on time if done the next ay on which the court office is open

Question 35

what are the consequences if fail to include statement of truth on a statement of case?

Answer 35

failure to include means doc cannot be used as evidence, if doc contains false info, person signing it may face proceedings for contempt of court

Question 36

if a party submits a statement of case with formatting errors - what are the potential consequences?

Answer 36

non-compliance requires formal amendments, which can delay proceedings and incur additional costs.

Question 37

what must particulars of claim include in a personal injury case?

Answer 37

C’s date of birth
details of injury
schedule of past and future expenses and losses
report of any expert medical practitioner relied on by C

Question 38

what is the purpose of C replying to a defence? (statements of case)

Answer 38

purpose is to respond to any new points raised in the defence that C has not already addressed in the particulars of claim

Question 39

what are the 3 different ways a D can respond to a statement of case?

Answer 39

1) admit
2) deny (with reasons)
3) require proof

Question 40

when should a C file their reply to the defence?

Answer 40

should be filed with the directions questionnaire (it is optional and it is where C alleges any facts in answer to the defence that haven’t already been included in the C’s earlier claim)
parties are given at least 14 days notice

Question 41

what is the set-off consequence if C is unsuccessful and D is successful?

Answer 41

there is no judgment in favour of the C for the set-off to attach to so judgment will simply be entered for D

Question 42

what is the set-off consequence if C is successful and D is not?

Answer 42

there is no set-off consequence (as it is not triggered) and judgment is simply entered against D

Question 43

how should a counterclaim be filed?

Answer 43

as it is in the same proceedings as the main claim it should be filed as a combined doc with the defence

Question 44

if D1 acknowledges service of claim and wants to seek contribution or indemnity from D2 - what should they do?

Answer 44

file a contribution notice with the court and serve it on D2 = a D who has acknowledged service of claim or served defence can seek a contribution or indemnity from an existing party by filing a contribution notice with the court and serving it on the other party

Question 45

what is an indemnity?

Answer 45

it is the right to recover from a third party the whole amount which he himself if liable to pay

Question 46

what is a contribution?

Answer 46

a right of someone to recover from a third party all or part of the amount which he himself is liable to pay

Question 47

if you want to add a claimant to the statements of case- how do you do this?

Answer 47

you need to get the consent of the C and with the consent being filed at court
(if claim form has already been served then need court’s permission to add, remove to substitute a party)

Question 48

what should a party do if they want to file a claim against a third party who is not current involved?

Answer 48

a party that is already involved can file an additional claim against a third party who is not currently involved.

Question 49

what is a court likely to consider when deciding whether to grant the C’s application to amend the statement of case/ D’s application to amend defence?

Answer 49

court will consider whether the amendment is necessary to deal with the case justly and at proportionate costs, taking into account the potential prejudice to the D/C and the overriding objective.

Question 50

if a party objects to providing requested information - what should they do?

Answer 50

if a party objects to providing requested info then they must inform the requesting party of the objections and given reasons within the specified time period (therefore, requesting party is aware of the objection and can decide on the next steps)

Question 51

if there is an embedment adding a new duty of obligation on part of a D (or possibly C) what should happen/consequence?

Answer 51

it will usually raise a new cause of action so this will be a new claim

Question 52

if there is an amendment adding additional facts or particulars which clarify a duty or obligation which has already been alleged - what are the consequences?

Answer 52

this will not normally be interpreted as raising a new cause of action

Question 53

adding or substituting parties post limitation is deemed to be ‘necessary’ only if the court is satisfied that…. (3 things)

Answer 53

1) new party is to be substituted for one that was named in claim form in mistake for the new party; or
2) claim cannot properly be carried on/by/against the original party unless new party is added or substituted; or
3) original party has died or had a bankruptcy order