Dispute Resolution Flashcards
Churchill v Merthyr Tydfil County Borough Council [2023]
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.
Mediation
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.
Arbitration
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.
Limitation Act 1980
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.
Types of claims
Specified - fixed amount.
Unspecified - court conducts investigation. Plus mixture.
Brief details of claim
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.
Statement of value
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.
Statement of truth
[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.
Adding, removing, substituting
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.
Service of claim form
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.
Deemed service of other documents
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.
Acknowledgement of service and the defence
14 or 28 days if acknowledgment filed.
Default judgement
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.
Consent orders
None litigant in person.
Order agreed by parties drawn up in terms agreed.
Expressed as being ‘By Consent’.
Signed by legal representatives.
Public.
Tomlin order
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.
Disputing court’s jurisdiction
In acknowledgement of service. 14 days.
Particulars of a claim
Concise statement of facts which claimant relies on.
If seeking interest - statement, details.
Claim based on breach of contract
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.
Amendments to statement of case
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.
Summary judgement
Rule 24.3 - considers that other party has no real prospect of succeeding or no other compelling reason.
Interim injunctions
With notice.
Without notice.
Freezing - restrain party removing assets from jurisdiction.
Search - respondent allows premises to be searched by applicant.
Interim payments
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.
The overriding objective
Enable court to deal with case justly and at proportionate cost.
Failure to file directions questionnaire
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.
Costs budget
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
Standard disclosure
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.
Withholding inspection of documents
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.
Non-party disclosure
Documents likely to support applicant’s case or adversely affect case of another party.
Necessary to dispose fairly of case or save costs.
Opinion evidence
Not admissible.
Unless facts personally perceived.
Hearsay evidence
Statements made outside court which is repeated in court to prove the truth of the matter.
Notice served with witness statement.
Witness summons
Issue and served 7 days before court otherwise court’s permission required.
N20.
Pre-trial checklist
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.
Trial bundle
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.
Permission to appeal
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.
Leapfrog
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.
Grounds of appeal
Decision of lower court -
Wrong - law, interpretation of facts, exercise of discretion.
Unjust - serious procedural irregularity.
Fixed costs
Fast and intermediate.
Increase for exceptional circumstances.
Increased or decreased 50% for unreasonable conduct.
Costs managment order on multi-track
Standard basis.
Recover approved or depart if good reason to do so.
Summary assessment
Fixed.
Court make costs at end of hearing unless good reason.
Not lasted more than day.
Detailed assessment
Insufficient time for summary or multi-track.
3 months of date of judgement. Notice of Commencement with bill of costs and evidence - 21 days.
The standard basis
Reasonably incurred for reasonable amount and proportionate to matters in issue - overall figure.
Doubt - in favour of paying party.
Line by line basis.
The indemnity basis
Penalty - conduct.
Costs reasonably incurred and reasonable in amount.
Doubt - in favour of receiving party.
Non-party costs
Discretionary power.
Real interest in litigation or responsible for bringing proceedings.
Before order made - added to proceedings and may attend hearing for costs.
Security of costs
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.
Part 36 offers
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.
Acceptance within relevant period
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.
Late acceptance
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.
Claimant wins trial and equals or beats own offer
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+.
Claimant wins but does not beat own offer
No extra penalty.
Claimant loses trial.
Pay defendant’s costs.
Claimant wins trial and beats defendant’s offer
Defendant pay amount of judgement plus interest in particulars of claim and claimant’s costs on standard or fixed.
Claimant wins at trial but fails to beat defendant’s offer
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.
Claimant loses trial - defendant’s offer.
Pay defendant’s costs.
Pay interest on costs from day 22 until judgement - 1% or 2%.
Taking control of goods
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.
Charging orders
Beneficial interest.
More than £50,000 - either.
Third party debt orders
Bank accounts.
Trade doubts.
Without notice.
Sole name.
Attachment of earnings
Must be employed.
County Court.
Ceases if not employed or moves.
May order low value. ==
