Dispute Resolution

Question 1

Churchill v Merthyr Tydfil County Borough Council [2023]

Answer 1

Court can lawfully stay proceedings for ADR but if it does not impair right to proceed to judicial hearing and is proportionate to achieving legitimate aim of settling dispute fairly, quickly and a reasonable cost.

Question 2

Mediation

Answer 2

Parties agree independent third body.
Advantages -
Cost and speed.
Flexibility.
Privacy.
Preserving business relationship.
Commercial reality.
Ability to withdraw.
Disadvantages -
Limited disclosure.
Privacy (lack of public vindication).
Ability to withdraw.
Enforcement -
Agreement not automatically binding - cannot enforce like court judgement.
Yet - written agreement/contract - breach.

Question 3

Arbitration

Answer 3

Contractually bound or agree to it.

Advantages -
Quicker, cheaper.
Less formal procedure.
Decision made by impartial third party with expertise.
Private.
Preserve business relationship.
Solutions more practical.
Binding.
Decisions -
Not in depth investigation.
Certain remedies e.g. injunction unavailable.
Enforcement -
Winning part apply to High Court for permission to enforce arbitration award like court judgement.

Question 4

Limitation Act 1980

Answer 4

Contract - 6 years from breach.
Tort - 6 years from committed or breach of duty (negligence).
Personal injury - 3 years from date of cause of action or date of knowledge.
Children - 18th birthday.
Negligence where damage is latent -
6 years from date of action or 3 years from date of knowledge.
No longer than 15 years.
Check contractual limitation.

Question 5

Types of claims

Answer 5

Specified - fixed amount.
Unspecified - court conducts investigation. Plus mixture.

Question 6

Brief details of claim

Answer 6

Concise statement, specify remedy.
By a written contract dated [date] the Defendant agreed to manage the Claimant’s
portfolio of investments. The Defendant was in breach of its obligations and negligent
in this management by failing to invest the Claimant’s investments in accordance with his stated aim of conservative growth, choosing instead to invest in high-risk investments,
causing the Claimant damage and loss. The claimant seeks damages estimated at
£500,000.

Question 7

Statement of value

Answer 7

County Court -
Expect to recover -
No more than £10,000.
More than £10,000 but no more than £25,000.
More than £25,0000 but not more than £100,000.
More than £100,000.
Disregard - interests, costs, contributory negligence, counterclaims.

Question 8

Statement of truth

Answer 8

[I believe] [The claimant or as may be believes] that the facts stated in this [name of the document] are true. [I understand] [The claimant or as may be understands] that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Question 9

Adding, removing, substituting

Answer 9

Consent in writing filed at court.
Permission if claim form served.
Grounds -
Application made within limitation period -
Desirable to ass to resolve matters in dispute; or remove party; or substitute party where interest or liability passed to them.
Outside limitation period -
Added or substituted if limitation period current when proceedings started and original party named by mistake; or died, bankruptcy order, interest/liability passed; or claim cannot properly be carried on without new party.

Question 10

Service of claim form

Answer 10

Within 4 months of issue.
Personal service,
First class! or DX?
Other - party expressly confirm they are willing to accept manner.
Deemed - second business day after step required.

Question 11

Deemed service of other documents

Answer 11

Personal service, delivering, fax, email - if before 4:30pm - on that day. Not - next business day.
First class post or DX - second day after posted provided business day.
Particulars of claim -
Same time or within 14 days.

Question 12

Acknowledgement of service and the defence

Answer 12

14 or 28 days if acknowledgment filed.

Question 13

Default judgement

Answer 13

After 14 days.
Set aside -
Mandatory ground - judgement entered too early or claim paid in full.
Discretionary ground -
defendant has real prospect of successfully defending claim or other good reason.

Question 14

Consent orders

Answer 14

None litigant in person.
Order agreed by parties drawn up in terms agreed.
Expressed as being ‘By Consent’.
Signed by legal representatives.
Public.

Question 15

Tomlin order

Answer 15

Stays on agreed terms in schedule or separately.
Order - By Consent.
Stay of proceedings.
Liberty to apply - face.
Payment of costs or detailed assessment of costs.
Signed by parties solicitors.
Confidential.

Question 16

Disputing court’s jurisdiction

Answer 16

In acknowledgement of service. 14 days.

Question 17

Particulars of a claim

Answer 17

Concise statement of facts which claimant relies on.
If seeking interest - statement, details.

Question 18

Claim based on breach of contract

Answer 18

Status of parties.
Existence of contract.
Terms.
Breach alleged and particularised.
Factual consequences.
Damage and loss alleged and particularised.
Interest -
Contract.
Not - Late Payment of Commercial Debts (Interest) Act 1998 - 8% per annum.
Other cases - court’s discretion - s.35A Senior Courts Act 1981 - High Court. s.69 County Courts Act 1984 - County Court.
Specified claims - interest precisely calculated as lump sum for amount accrued from breach up to date of issue of proceedings plus daily rate.
Statement of relief.
Statement of truth.

Question 19

Amendments to statement of case

Answer 19

Before expiry of limitation period -
After filing, before service - any time.
After service - written consent of parties or permission of court.
After expiry of limitation period -
To add or substitute new claim.
To correct genuine mistake as to name.
To alter capacity.

Question 20

Summary judgement

Answer 20

Rule 24.3 - considers that other party has no real prospect of succeeding or no other compelling reason.

Question 21

Interim injunctions

Answer 21

With notice.
Without notice.
Freezing - restrain party removing assets from jurisdiction.
Search - respondent allows premises to be searched by applicant.

Question 22

Interim payments

Answer 22

Defendant admitted liability.
Claimant obtained judgement for damages to be assessed or sum of money.
Court satisfied if case went to trial, claimant would obtain judgement for substantial amount of money.
Balance of probabilities.

Question 23

The overriding objective

Answer 23

Enable court to deal with case justly and at proportionate cost.

Question 24

Failure to file directions questionnaire

Answer 24

Claim for money in County Court - court serve notice for compliance within 7 days. Not - automatically struck out.
Other - court makes order e.g. strike out.

Question 25

Costs budget

Answer 25

Filed with directions to questionnaire for claims less than £50,000. Other - no later than 21 days before CMC. Amend - agree, file budget variation sheet. Failure - unless court orders otherwise, party treated as having filed costs budget of only court fees. Grant relief from this automatic sanction

Question 26

Standard disclosure

Answer 26

Documents on which they rely and adversely affect their own case; adverse affect another party's case; support another party's case. N265. Part 1 - party's control, do not object from inspecting. Part 2 - in control but objection to inspection. Part 3 - not in control, not privileged from inspection.

Question 27

Withholding inspection of documents

Answer 27

Legal professional privilege. Legal advice privilege. Litigation privilege - communication passing between client or lawyer and third party. Came into existence when litigation contemplated or ongoing. Produced with view of litigation, sole or dominant purpose. Waiving. Without prejudice.

Question 28

Non-party disclosure

Answer 28

Documents likely to support applicant's case or adversely affect case of another party. Necessary to dispose fairly of case or save costs.

Question 29

Opinion evidence

Answer 29

Not admissible. Unless facts personally perceived.

Question 30

Hearsay evidence

Answer 30

Statements made outside court which is repeated in court to prove the truth of the matter. Notice served with witness statement.

Question 31

Witness summons

Answer 31

Issue and served 7 days before court otherwise court's permission required. N20.

Question 32

Pre-trial checklist

Answer 32

Ensure parties complied with directions, trial ready to proceed. Filed 8 weeks before trial. Judge review to decide further directions, whether review - listing, Failure - neither - court order that unless completed filed within 7 days - struck out. One party - fix hearing. More than 10 days - may order pre-trial review with parties representatives.

Question 33

Trial bundle

Answer 33

Claimant or solicitor prepare but contents agreed. Filed 7-3 days before trial. Claim form and all statements. Case summary, chronology. Case summary. Witness statements. Notice of intentions to rely on hearsay evidence. Expert's reports and responses. Directions orders. Other necessary. Identical copies to all parties.

Question 34

Permission to appeal

Answer 34

First - real prospect of success or other compelling reason. Second - permission from Court of Appeal. Important point of principle or justice. Permission from trial judge at end or from appeal court. 21 days - County or High Court. 28 days - Court of Appeal to Supreme Court.

Question 35

Leapfrog

Answer 35

Important point of principle or practice, other compelling reason for Court of Appeal. Supreme Court - Leapfrog certificate by trial judge or grant of permission by Supreme Court.

Question 36

Grounds of appeal

Answer 36

Decision of lower court - Wrong - law, interpretation of facts, exercise of discretion. Unjust - serious procedural irregularity.

Question 37

Fixed costs

Answer 37

Fast and intermediate. Increase for exceptional circumstances. Increased or decreased 50% for unreasonable conduct.

Question 38

Costs managment order on multi-track

Answer 38

Standard basis. Recover approved or depart if good reason to do so.

Question 39

Summary assessment

Answer 39

Fixed. Court make costs at end of hearing unless good reason. Not lasted more than day.

Question 40

Detailed assessment

Answer 40

Insufficient time for summary or multi-track. 3 months of date of judgement. Notice of Commencement with bill of costs and evidence - 21 days.

Question 41

The standard basis

Answer 41

Reasonably incurred for reasonable amount and proportionate to matters in issue - overall figure. Doubt - in favour of paying party. Line by line basis.

Question 42

The indemnity basis

Answer 42

Penalty - conduct. Costs reasonably incurred and reasonable in amount. Doubt - in favour of receiving party.

Question 43

Non-party costs

Answer 43

Discretionary power. Real interest in litigation or responsible for bringing proceedings. Before order made - added to proceedings and may attend hearing for costs.

Question 44

Security of costs

Answer 44

Discretionary power. Only defendant. Claimant resident outside 2005 Hague Convention State. Claimant has taken steps to make enforcement difficult. Justness - Strength of claim and defence. Claimant's ability to provide security. Causes of claimant's impecuniosity. Property within jurisdiction. Timing of application. Voluntarily or apply to court.

Question 45

Part 36 offers

Answer 45

In writing. Make it clear it is made pursuant to Part 36. Specify period of not less than 21 days. State whether whole claim or part of it and takes into account counterclaim.

Question 46

Acceptance within relevant period

Answer 46

Claimant accepts - sum paid within 14 days or claimant enter judgement. Costs up to notice of acceptance served on defendant. If cannot agree - fixed or standard.

Question 47

Late acceptance

Answer 47

Claimant - Defendant pays claimant's costs up to date on which relevant period expired. Claimant pays defendant's costs after until date of acceptance. Defendant - Pay claimant's costs up to date of acceptance.

Question 48

Claimant wins trial and equals or beats own offer

Answer 48

Defendant pay damages and interest. Additional - 10% of sum up to £500,000. Excess of £500,000 and up to £1m - 10% of first £500,000. 5% up to maximum of £75,000. Enhanced interest of damages - day 22+ - 10% above base rate. Multi-track on indemnity - from day 22. Fast and intermediate enhanced fixed costs - 35% of different between when relevant period expired and date of judgement. Interests on those costs - 10% about base rate - day 22+.

Question 49

Claimant wins but does not beat own offer

Answer 49

No extra penalty.

Question 50

Claimant loses trial.

Answer 50

Pay defendant's costs.

Question 51

Claimant wins trial and beats defendant's offer

Answer 51

Defendant pay amount of judgement plus interest in particulars of claim and claimant's costs on standard or fixed.

Question 52

Claimant wins at trial but fails to beat defendant's offer

Answer 52

Split costs order. Defendant pays claimant's costs on standard or fixed from costs incurred until relevant period expired. Claimant pays defendant's costs on standard basis or fixed costs from date of expiry of relevant period until judgement. Interest - 1% or 2% above base rate.

Question 53

Claimant loses trial - defendant's offer.

Answer 53

Pay defendant's costs. Pay interest on costs from day 22 until judgement - 1% or 2%.

Question 54

Taking control of goods

Answer 54

Cannot force into home but can use reasonable force to enter business. Necessary items exemption. Maximum aggregate value of £1,350. Less than £600 - County Court - warrant of control - enforcement officer. £600 - £5,000 - either. More than £5,000 - High Court - write of control - High Court enforcement officer.

Question 55

Charging orders

Answer 55

Beneficial interest. More than £50,000 - either.

Question 56

Third party debt orders

Answer 56

Bank accounts. Trade doubts. Without notice. Sole name.

Question 57

Attachment of earnings

Answer 57

Must be employed. County Court. Ceases if not employed or moves. May order low value. ==