Dispute Resolution Flashcards
What is the basic rule on limitation periods?
6 years (beginning on the day after the cause of action accrues).
What is the limitation period for personal injury claims?
3 years (beginning on day the loss is sustained or date of knowledge of person injured), except for children where the time limit only starts to run on their 18th birthday.
What is the limitation period for negligence claims where damage is hidden at date when cause of action accrues?
6 years from date of cause of action or 3 years from date of knowledge of the damage (whichever is later).
What is the best course of action if you notice that a client’s limitation period expires in a few days?
Start court proceedings to prevent being time-barred and sued for negligence as a solicitor.
N.B. D may rely on the limitation period having expired as a complete defence.
If a cause of action is struck out by the court, what limitation period is a fresh claim for the same cause of action subject to?
The original limitation period.
Define what is meant by ‘cause of action’?
Legal basis of claim e.g. breach of contract, tortious act.
What does a ‘governing law clause’ enable parties to a contract to do?
Specify the system of law that will apply to the interpretation of their agreement and its effect if a dispute arises.
N.B. Where none is specified in contract, identifying jurisdiction is a key preliminary issue.
What does a ‘jurisdiction clause’ do?
Identifies which court(s) are to hear a dispute.
What are the consequences if a client refuses to engage in ADR?
The court may order them to do so.
N.B. The burden is on D to show that C’s refusal to participate in ADR was unreasonable.
N.B. The court may impose a cost sanction on a successful party in litigation if they unreasonably refuse to participate in ADR.
What must solicitors explain to clients RE ADR?
The need to try to settle, the options available and the possibility of sanctions if they refuse to attempt to settle.
List the 3 types of ADR?
1) Mediation
2) Arbitration
3) Litigation
List the key features of mediation?
- Fastest of the 3 options, usually resolved in days or weeks.
- Generally non-binding.
- Private and confidential.
- The mediator can pass offers between the parties as negotiations advance.
- Can work to preserve business RS.
List the key features of arbitration?
- Common for parties to be bound contractually to use arbitration.
- Faster than litigation.
- Results in a final and binding decision (enforceable through application to HC).
- Confidentiality; aligns with parties’ desire to avoid negative publicity.
List the key features of litigation?
- Last resort if parties cannot or will not engage in ADR.
- Breaks deadlock between parties (albeit at a cost).
- Lengthy process; less suitable when both parties want a quick resolution.
- Binding outcome.
- Public process; unsuitable for parties seeking to avoid adverse publicity but may provide public vindication if successful.
What is civil litigation governed by?
Civil Procedure Rules and annexed pre-action procedures to be followed for different claims.
What personnel support the courts to ensure the civil system operates efficiently?
Judges
Court manager
Ushers
Enforcement officers.
What are the 5 stages to litigation?
1) Pre-commencement of proceedings.
2) Issuing of proceedings; commencement of the action.
3) Interim matters (court managing case to ensure progression to trial).
4) Trial and appeal
5) Enforcement (post-trial).
What factors are considered prior to commencing proceedings?
- Can the claim be brought at all?
- Who are the parties?
- Does D have means to pay a judgment?
- What are the case merits?
- Consider ADR.
How are proceedings issued?
C serves a claim form on D together with full particulars of claim. D can file and serve a defence on C if desired, and court then allocates the matter to a track.
What track are claims allocated to?
- Small claims track: up to £10,000.
- Fast-track: > £10,000 and up to £25,000.
- Intermediate track: > £25,000 and up to £100,000.
- Multi-track: > £100,000.
How are interim matters dealt with on the different claims tracks?
- Small claims track: standard directions.
- Fast track: standard directions, disclosure of documents, exchange of witness statements and reports.
- Intermediate and multi-track: directions or CMC where directions given.
What is the difference between a specified and unspecified claim?
Specified = for a fixed amount of money e.g. debt owed.
Unspecified = figure owed cannot be calculated by mere mathematics.
N.B. A mixture of specified and unspecified amounts will mean the entire claim is treated as unspecified.
List some important things to note RE parties to a claim?
- Identify all potential D’s early on to avoid incurring costs later.
- Ensure D is traceable to communicate the claim and issue necessary proceedings.
- Ensure D is sued in correct capacity and is worth suing through CH enquiries.
When does the Practice Direction on Pre-Action Conduct (PDPAC) apply?
Where no relevant protocol exists, with aims consistent with CPR as a safety net to ensure that no civil claim escapes the requirement to follow the pre-action procedures.
List some principles common to all pre-action procedures?
- Litigation should be a last resort, consider ADR and settlement prior.
- Parties should exchange sufficient information to understand each other’s position, reduce costs of resolution, consider ADR etc.
When trying to identify, narrow and resolve the legal/factual issues, what steps should be taken?
‘Reasonable and proportionate’ with only proportionate costs incurred in doing so.
What should be done prior to C issuing proceedings?
Parties review their respective positions after following the Practice Direction, and at least narrow the issues in dispute.
What are the potential penalties for non-compliance with Practice Direction?
- The party at fault pays some or all of their opponents costs (on indemnity basis)
- Depriving a C who is at fault some or all of the interest they may be awarded on damages recovered.
- Requiring a D who is at fault to pay interest on any damages awarded to C at rate of up to 10% per annum above base rate.
How long does D have to respond to claim form?
- 14 days in straightforward claim
- 3m max in complex claim.
List some common pre-action protocols?
Professional Negligence
Debt claims
What are the key features of the Pre-action protocol for professional negligence?
- Preliminary notice letter to professional (contains information about C, brief outline of C’s grievance and indication as to claim’s financial value).
- Letter of claim (professional to acknowledge within 21 days of receipt).
- Within 3m, respond with letter of response.
- Letter of statement if professional intends to make settlement proposals for all or part of the claim.
- If letter of response denies the claim entirely and no settlement offered, C can begin court proceedings.
How long are debtors given to respond to protocol in debt claims?
30 days; proceedings cannot be issued before this deadline.
Why is it important to ensure that cases are issued in the correct court (High Court or County Court)?
To avoid the delay and expense of a subsequent transfer and so the claim proceeds in the court with judges and procedure best suited to deal with the matter.
If the value of the claim is £100,000 or less, it must be started where?
County Court.
If the value of the claim exceeds £100,000, it may be started where?
High Court.
When may personal injury claims be started in the High Court?
Where the value of the claim is £50,000 or more.
When else may the High Court be used?
Where the claim is complex in relation to facts, legal issues, remedy or procedures, or the outcome is important to the public.
Explain some of the other claims that may go through the County Court?
Deals with more straightforward specified and unspecified claims.
All money-only claims made on paper (including both specified and unspecified) must be sent to the Civil National Business Centre (CNBC). If a hearing is then required, the matter will be transferred to the County Court hearing local to Defendant.
Online claims for specified sums of money (debt claims) for amounts of up to £100,000 can be made via the website Money Claim Online.
List the 3 divisions of the High Court?
1) King’s Bench Division - workload consisting primarily of actions in contract and tort.
2) Chancery Division - used for disputes arising over land, trusts, contentious inheritance matters, partnership claims, and company law.
3) Family Division - used for family disputes.
When do proceedings formally start?
When Claimant or their solicitor sends a claim form (form N1) and other relevant documents (particulars of claim and docs required to be annexed by the CPR e.g. copy of contract) to the appropriate court to be ‘issued’.
What is included in the claim form?
A summary of the most important aspects of the claim; should be sufficiently detailed for court and other parties to understand Claimant’s case.
Particulars of Claim either served with claim form (simple debt cases) or subsequently (more complex cases) but within 14 days after service of claim form.
When is a claim ‘brought’ for limitation purposes (time stops running)?
When the claim form is received in the court office.
When is a claim form issued?
On the date entered on the form by the Court.
List some key things to include in a claim form?
- Heading.
- Details of the parties.
- Brief details of claim.
- Statement of value.
- Defendant’s name and address for service.
- Financial summary of claim.
- Preferred (most convenient) CC hearing centre.
- Witnesses (Y/N).
- Particulars of claim.
- Statement of truth.
What are the requirements for ‘heading’ in a claim form?
Details of the relevant court and the solicitors fee account (so court fee can be paid) in the top right hand corner.
The court will then assign a claim number when the form is issued, which is to be included on all subsequent court documents and correspondence.
What are the requirements for ‘details of the parties’ in a claim form?
Names and status must be correctly described; failure to do so may result in proceedings being struck out.
- Individuals (described using full names and titles).
- Sole traders (described in the business name; ‘trading as’).
- Partnerships (described in the name of the firm).
- Companies (described in the correct registered name and address on CH).
What are the requirements for ‘brief details of claim’ in a claim form?
Concise statement of the nature of the claim and specify the remedy C is seeking.
What are the requirements for ‘statement of value’ in a claim form?
An estimated or actual value of claim to be inserted.
- For specified (debt) claims, precise figure including any accrued interest.
- For unspecified claims, Claimant to put an estimate of how much they ‘expect to recover’.
– In HC, ‘Claimant expects to recover more than £100,000’.
– In CC, Claimant must state whether they expect to recover;
— Not more than £10,000
— More than £10,000 but not more than £25,000
— More than £25,000 but not more than £100,000
— More than £100,000.
N.B. Do not include any possible awards of interest, costs, contributory negligence or counterclaims when calculating this.
What are the requirements for ‘Defendant’s name and address for service’ in a claim form?
Bottom left hand side of the form; or solicitors details provided either Defendant or their legal representative have confirmed in writing that the latter have been instructed to accept service of the court proceedings on their client’s behalf.
What are the requirements for ‘financial summary of the claim’ in a claim form?
Includes;
- Exact figure in the ‘amount claimed’ box (includes interest that has accrued to the date of issue of proceedings).
- For unspecified claims, estimate of amount of damages claimant expects to recover).
- The legal representative’s costs are fixed for specified money claims, and ‘to be assessed’ for others after court proceedings.
What are the requirements for ‘statement of truth’ in a claim form?
Must be in the witnesses’ own language, signed and dated.
Can be signed by either the party or their legal representative. Simple where claimant is an individual, but if not;
– For Company, can be signed by any of the Partners holding a senior position e.g. director, secretary, chief executive, treasurer.
– For Partnership, can be signed by any of the partners or a person having control of the management of the business.
Can a legal representative sign a statement of truth?
Yes; taken as their statement that the client has authorised them to do so, confirming the client’s belief in the truth of the stated facts, and they have explained the possible consequences (contempt of court) if found that he did not have honest belief in the truth of the facts.
What are the implications of failing to include a statement of truth in a claim form or particulars of claim?
The court may strike out the document and even if not, Claimant is precluded from relying upon its contents.
Is permission required to add, remove or substitute parties?
Yes, unless claim form has not yet been served.
What are the 3 grounds for adding, removing or substituting parties within the limitation period?
It is desirable;
1) To add a new party to resolve the matters in dispute.
2) To remove a party, or
3) To substitute a party where the existing party’s liability or interest has passed to them.
What are the 3 grounds for adding, removing or substituting parties outside the limitation period?
May only be done if limitation period was current when proceedings started, and;
- The original party was named by mistake, or
- The original party has died/is subject to bankruptcy order, or
- The claim cannot be properly carried on without the new party.
What is the deadline for serving a claim form on all other parties once issued?
4 months.
N.B. CPR allows 6 months for claim form to be served on the other parties if outside the jurisdiction.
When can a claim form be served on a firm of solicitors?
If Defendant has nominated them in writing and should not just be presumed. Once nominated, all documents to be served on the solicitors unless (exceptionally) the document must be served personally on the party.
What are the 5 permitted methods of service under CPR?
1) Personal service.
2) 1st class post or document exchange.
3) Leaving claim form at a specified place.
4) Fax or other means of electronic communication.
5) Any other method authorised by the court.
How can claim forms be served by personal service to individuals, Partnerships and Companies?
Individuals - handing it to them; if they refuse to accept, it may be left with or near them.
Partnerships - may be left either with a partner or a person with control/management of the partnership as its main place of business.
Companies - may be left with a person holding a senior position.
When will a claim form be left at a specified place?
Where no solicitor authorised to accept service and Defendant has not given address for service.
Individuals - usual or last known residence.
Individual sued in name of a business (sole trader or Partnership) - usual or last known residence of the individual/business.
Companies - principal office of the Company; or any place of business of the Company within the jurisdiction that has a real connection with the claim.
When can fax or other means of electronic communication be used as a method of service of claim form?
Where both the party to be served (or their solicitor) have expressly confirmed that they are willing to accept service in this manner; an email address/fax number on the party’s headed paper is not enough to satisfy this requirement.
When does the 4 month timeframe to serve claim form end?
On the date;
- Personal service was effected or delivery made at the relevant place, or
- The letter was posted or left with the DX provider, or
- The transmission of the fax was completed or email sent.
N.B. Once done, C has completed required step for claim form service.
When is deemed service presumed for claim forms?
On the 2nd business day after the step required has occurred.
When is deemed service presumed for particulars of claim?
Depends on with/without 4:30pm cut off time;
- Personal service, delivering documents to permitted address, fax and email - that day if served before 4:30pm on a business day or next day if not.
- 1st class post and DX - 2nd day after it was posted provided that day is a business day or if not, the next business day.
When is Defendant compelled to take action after proceedings are issued?
When particulars of claim are served (either with claim form or subsequently), D must ‘do something’ within 14 days of deemed service, with form N9 (response pack) assisting with this.
What 4 options are available to Defendant when responding under CPR?
1) To file an admission (in whole or part).
2) To file an acknowledgment of service.
3) To file a full defence.
4) Ignore proceedings completely.
What happens if Defendant chooses 1) To file an admission (in whole or part)?
Brings matter to an early end and limits their liability for costs.
Specified claims - admission of entire claim;
- Defendant submits details of income and expenditure with an offer to pay (in full or instalments).
- Upon receipt, Claimant can file a request for judgment.
Specified claims - admission of part of claim;
- Claimant has 14 days to respond to any offers made and decide on;
– Accept in full satisfaction (request judgment for admitted amount).
– Accept admission but not payment terms (court decides suitability).
– Reject the offer (proceed as defended action).
Unspecified claims - court will notify Claimant to confirm acceptance of offer.
– If Claimant accepts, judgment entered for that amount (possibly with instalments).
– If Claimant rejects or no offer is made, damages determined at a disposal hearing.
What is the implication of Defendant choosing 2) To file an acknowledgment of service?
Gives them more time to gather evidence; now has 28 days (up from 14) of deemed service of particulars of claim to file a defence.
What happens if Defendant chooses 3) To file a full defence?
May be done within 14 days (or 28 if acknowledgment of service filed).
Once defence filed, a copy must be served on all other parties.
As part of Defendant’s response, they may pursue their own counterclaim against Claimant.
How can the time limit to file a defence be extended beyond the 28 day maximum?
If all parties agree and by a maximum of 28 days; gives Defendant 56 days from date of service of particulars of claim.
N.B. Any further extensions would require court’s permission.
What happens if Defendant chooses 4) to ignore proceedings completely?
Claimant will then apply for judgment in default (mechanism whereby Claimant can force the issue and ensures Defendant does not evade liability by doing nothing).
1st day to apply for default judgment is day after COB on 14th day.
N.B. C must satisfy court that the particulars of claim have been served on Defendant and Defendant has not filed an acknowledgment of service or defence within relevant time period.
Under what limited circumstances may Claimant not obtain a default judgment?
If there is a pending application by Defendant for summary judgment, or to have Claimant’s statement of case struck out.
What must the Claimant do when applying for judgment in default for a specified sum?
- Indicate the date payment was due.
- Calculate an up-to-date total for the interest claimed.
- State a daily rate at which interest accrues.
N.B. This allows court to enter judgment for the correct figure on any given day.
N.B. Once final judgment has been entered, payment is usually required within 14 days.
What is required to determine the amount of damages payable for an unspecified sum?
Disposal hearing.
If Defendant does not accept that the monies are owed, what are the 2 grounds to apply to set aside default judgment?
1) Mandatory ground.
2) Discretionary ground.
When will the court set aside default judgment under the mandatory ground?
If default judgment was wrongly entered into;
– Judgment entered too early (before the time for filing acknowledgment of service or a defence expired).
– Claim already been paid in full.
When may the court set aside default judgment under the discretionary ground?
Where Defendant;
– Has a real prospect of successfully defending the claim (e.g. a dispute about quality of the consignment), or
– There is some other good reason why the Defendant should be allowed to defend the claim; evidence required (e.g. was ill or away so could not respond within time constraints).
N.B. Court to also take into account the promptness of Defendant’s application to set aside default judgment; important that it is issued as soon as Defendant aware of it.
How are costs dealt with under default judgment?
- If default judgment is set aside under mandatory ground, Claimant pays Defendant’s costs.
- If Defendant’s application to set aside default judgment fails, Defendant pays Claimant’s costs.
- If Defendant’s application to set aside default judgment succeeds, Defendant pays Claimant’s costs.
Explain what is meant by ‘discontinuance’?
Claimant can discontinue all or part of a claim despite no settlement being reached at any time during proceedings by filing and serving a notice of discontinuance on the parties to proceedings.
Permission is not usually required but;
- If more than one Claimant, cannot discontinue unless every other party consents in writing or court gives permission.
- If more than one Defendant, Claimant may discontinue the claim against all or any of the Defendant’s.
Effect = proceedings end against Defendant on the date the notice of discontinuance is served on them; Claimant becomes liable for costs of proceedings unless court orders otherwise.
What happens where a settlement is reached prior to the issue of proceedings?
The prospective Claimant will not be entitled to recover their legal costs unless this has been agreed.
Agreed settlement terms must be clearly recorded in writing for enforcement of agreement if either party defaults.
What happens where a settlement is reached after the issue of proceedings?
It is preferable to be recorded in a court order or judgment for easier enforcement of payments or costs.
Consent orders or Tomlin orders.
What are the key features of a consent order?
- The order agreed by the parties must be drawn up in the terms agreed, and expressed as being ‘by consent’.
- It must be signed by the legal representative acting for each of the parties to whom the order relates.
- Effect = as long as monies are paid by the stated deadline, the claim comes to an end. If unpaid, interest will start to run on the sum and Claimant can take enforcement action.
N.B. Only terms within the powers of the court to order may be agreed.
How is a Tomlin order different and when may it be used?
They are open to public inspection; used if you want to keep confidential terms away from customers etc and/or any terms are beyond the courts power to order.
Confidential terms are placed in the schedule to the agreement or in a separate document.
Often, it will be for the payment of a sum of money so that other businesses or customers cannot see how much the matter was settled for.
How can a Defendant dispute the court’s jurisdiction?
Must state so on the acknowledgment of service; then has 14 days after filing acknowledgment of service form to make a challenge, failing which they will be treated as having submitted to the jurisdiction.
What happens if the court grants the application and finds that the claim should not have been brought in England and Wales?
Service of the claim form will be set aside and proceedings come to an end.
What are statements of case?
The formal documents in which the parties concisely set out their respective cases; served between the parties and filed at court.
N.B. Central to the litigation as they ensure that each party knows their opponent’s case at an early stage, providing them with the opportunity to assess how strong it is, to determine what evidence is needed to counter it and to consider whether to make an offer to settle and on what terms.
What documents are usually included as the statements of case in civil proceedings?
Usually includes claim form and particulars of claim.
May also include a defence, reply, counterclaim, defence to counterclaim and response to request for further information.
How are statements of case used at trial?
The court will only decide those issues raised in the statements of case so important that they are drafted carefully and continually reviewed as the matter develops.
Who should sign statement of case if a solicitor prepares it?
The firm name.
List some things that are included in a particulars of claim?
A concise statement of the facts on which the claimant relies and if the claimant is seeking interest, a statement to that effect and the details.
E.g. claim based on breach of contract.
– Status of parties.
– Existence of contract (rarely disputed).
– Terms.
– Breach alleged and particularised.
– Factual consequences.
– Damage and loss alleged and particularised.
– Interest.
– Summary of relief.
– Statement of truth.
How can the ‘existence of a contract’ be established?
By the date, type (written or oral), parties, subject matter and consideration.
Where a claim is based on a written contract, a copy of the contractual documents must be attached to or served with the particulars of claim.
Where the claim is based on an oral agreement, the contractual words used, by whom, to whom and when/where should be specified.
How to fill out the ‘terms’ section on particulars of claim form?
By giving details of any express terms or implied terms to limit the areas of dispute for the court to consider.
How to fill out the ‘breach alleged and particularised’ section on particulars of claim form?
By giving general details of which terms were breached and specifically how e.g. failure to pay for goods, late delivery, poor quality of items supplied etc.
Then, particularise these by giving details of exactly what claimant alleges defendant did wrong (list of how they fell short of express/implied terms).
How to fill out the ‘damage and loss alleged and particularised’ section on particulars of claim form?
Allege general damage first e.g. claimant suffered damage and loss, then itemise the losses (clear to defendant exactly what is being claimed from them and how this is calculated).
List the 3 alternative ways of claiming interest?
1) Contractual interest - specified ROI payable on any outstanding sum.
2) Statutory interest - in the absence of a contractual provision, Late Payment of Commercial Debts (Interest) Act (8% above BOE’s base rate).
3) Discretionary interest - courts can award interest under Senior Courts Act (High Court cases) or County Courts Act (County Court cases).
N.B. For specified claims, interest payable must be calculated as a lump sum for the amount accrued from breach of contract up to date of issue of proceedings + daily rate so as to provide an updated total.
What should a solicitor do if a client has filed a statement of case and subsequently tells the solicitor that it contains a material error that would mislead the court?
Advise the client to amend the statement of case and if client refuses to do so, cease to act but do not tell court or any other party why you are no longer representing your client.
What is the purpose of the defence and what must be done?
Narrow down the issues between the parties so only the matters in dispute are tested by the court.
Must state for each allegation whether it is denied (explain why), not admitted or admitted; vital not to miss an allegation as the effect of this will be that it is deemed to be accepted.
N.B. Only if defendant denies claimant’s allegation will claimant then have to prove allegation.
List the contents of a defence as required by CPR?
- Name of the court.
- Claim number (URN allocated by court on issue of proceedings).
- The parties.
- The title (DEFENCE).
- The date and signature of solicitors in the name of the firm.
- The statement of truth.
- Details of who is to be served and where.
What should a defendant do who alleges that the relevant limitation period for the claim has expired?
Put details of this in the defence showing when it began and expired. Burden of proof then passes to claimant to show that the claim is not time-barred.
List 2 instances where the burden of proof falls upon the defendant?
Contributory negligence and a failure by the claimant to mitigate its loss.
When are counterclaims relevant?
If the defendant has actually suffered loss attributable to the claimant; treated as if it were a standalone claim and filed in addition to the defence (permission to do so only required where defence has already been filed).
N.B. When structuring counterclaim, refer back to defence to prevent repetition on agreed things e.g. existence and terms of contract.
What additional claims may be made by a defendant under Part 20?
Indemnity.
Contribution.
Additional claims against a non-party.
How may claims for an indemnity arise?
Where there is a contractual relationship between the defendant and the third party, in which the latter is obliged by the terms of a contract to indemnify the defendant if they are found liable for the claim.
How may claims for a contribution arise?
Where joint wrong-doers and defendant argues that 3rd party is partly responsible for the harm claimant has suffered.
When may defendant make an additional claim against a non-party without court permission?
If the notice is filed and served either before or at the same time as filing defence.
Is a claimant under an obligation to reply to a defence?
No.
How can a claimant dispute a counterclaim?
By filing a defence within 14 days (unless extension of up to 28 days has been agreed with defendant).
Can statements of case be amended after filing but before service?
Yes; at any time.
Can statements of case be amended after filing and service?
Only with the written consent of all the parties or court’s permission.
N.B. To apply for permission, the applicant must file a copy of the statement of case with proposed amendments; court then decides whether to grant the application.
Under what 3 circumstances may the court allow an amendment to statement of case after expiry of the limitation period?
1) To add or substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim.
2) To correct a (genuine) mistake as to the name of a party.
3) To alter the capacity in which a party claims.
When can clients make a request for further information (Part 18 request)?
To clarify any matter in dispute or obtain additional information in relation to any such matter.
Done by first serving a written and signed request on the other party, allowing a reasonable time for a response.
– Concise (single doc) request confined to matters that are reasonably, necessary and proportionate to enable the applicant to prepare their own case or understand the case they have to answer.
Served on all parties, filed with court and verified by statement of truth.
Can the court grant an order if the request is not responded to?
Yes.
