Dispute Resolution Flashcards
When will costs be considered?
- At end of interim application hearing
- At the end of trial
Can costs associated with the pre action protocol be ordered?
Yes - the court can determine by whom and the extent to the costs which will be paid.
Which cases does qualified one way costs shifting apply to?
Claims involving Personal injury and death - CPR 44.13
What is qualified one way costs shifting (‘QOCS’)?
Regime for recovery of costs between parties in PI and death claims.
Essentially in a case where QOCS applies (subject to exceptions):
• if C wins they may recover and enforce costs orders in the usual way; and
• if C loses costs orders against them cannot be enforced except up to the level of damages and interest awarded to C (likely to be £0 if C has lost).
QOCS doesn’t prevent costs orders being made, rather it imposes restrictions on the enforcement of those costs to ensure they fall below any amount C has received in damages and interest. E.g’s where losing C may have costs awards in their favour - success interim application hearing, or C failed to beat part 36 offer made by D.
Orders for costs are only enforceable against C under QOCS once proceedings have concluded and costs assessed/agreed - CPR 44.14(2).
QOCS exceptions
Exceptions which allow costs to be recovered against C without permission of court. Including scenarios where proceedings have been struck out on the following grounds :
A) c disclosed no reasonable grounds for bringing a claim;
B) proceedings for abuse of courts process; and or
C) conduct or C or someone acting on c’s behalf with c’s knowledge of the conduct is likely to obstruct the just disposal of proceedings.
Exception to QOCS where claim is found to be on the balance of probabilities ‘fundamentally dishonest’. Here the permission of court is required to enforce costs order to full extent against C.
How to determine conflicts of laws (contract disputes)
- Have the parties chosen which law should apply?
if so - that country’s law will apply
if not… - Does the contract relate to one of the cases specified in Articles 4(1)(a) to (h) Rome I - ie
Sale of goods - sellers habitual residence
Provisions of services - service providers habitual residence
Contract relating to land - where the land is situated
Distribution contract - Distributor’s habitual residence.
YES - Those articles apply!
No… - The applicable law is that of the country where the ‘characteristic performer’ has its habitual residence. ie the party doing something, not the party making payment! (art 4(2)).
- Is the contract ‘manifestly more closely connected’ with another country? (art 4(3)). applies if applicable law determined under art 4(1) or 4(2). this is rarely used.
How to determine conflicts of laws (tort)
- Have the parties validly chosen which law should apply?
Yes - applies if…
Agreement after the event giving rise to the damage - choice effective.
Agreement before the event - only effective IF both parties pursue commercial activity and freely negotiated choice of law.
NO -
2. Do C and D habitually reside in the same country?
Yes - that countries laws apply
No…
GENERAL RULE - Apply the law of country where the DAMAGE OCCURRED! (ie where injury sustained or damage 1st occurred).
- Was the tort ‘manifestly more closely connected’ with another country? - uncommon for courts to apply this.
Reasons to dispute courts jurisdiction
Party will argue the court does not have jurisdiction or that it should decline to exercise its jurisdiction in the following circumstances:
- C alleges the court has jurisdiction pursuant to convention but D disputes this;
- C obtained permission to serve proceedings out of jurisdiction, but D considers none of the gateways for obtaining such permission (6B PD 3.1) are satisfied and or England and Wales courts are not the proper place for the claim to be heard;
- Proceedings served effectively on D within jurisdiction but there is another more appropriate forum.
Procedure for disputing courts jurisdiction
- D must file acknowledgement of service - there is a box on the acknowledgement of service to indicate that D intends to contest jurisdiction.
- D must then apply within 14 days after filing the AOS, disputing the court’s jurisdiction. App must be supported by evidence.
D should not do anything other than file AOS and challenge of jurisdiction within 14 days (ie file a defence) as this will establish that the court has jurisdiction and cannot be later challenged.
How to refer to parties
Use the name of the company as it was when the cause of action accrued.
EXAMPLE partnerships
Flagstones (a firm) and/or (1) John Flagstone (2) Nisha Katon.
EXAMPLE Sole traders
John Flagstone (trading as John’s Cafe).
EXAMPLE LLP
Flagstones LLP.
EXAMPLE Companies
Rockstone Limited.
(a company may be represented at trial by an employee if: the employee has been authorised to do so by the company and the court gives permission).
Trusts/deceased’s persons
- Claims can be brought against trustees, executors/administrators. Not necessary to add beneficiaries of the trust or estate as parties to the claim. Any order made in the claim is binding on the beneficiaries.
P who had interest in claim died - no PR - court may order that the claim proceed in absence of P representing the estate of deceased, or a person be appointed to represent the estate of the deceased.
D against whom a claim could have been brought has died:
- Grant of probate or administration made - claim must be brought against deceased’s persons PRs.
- Grant of probate or administration not made - claim must be brought against ‘the estate of’ the deceased and the claimant must apply to the court for an order appointing P to represent the estate of the deceased in the claim.
Children EXAMPLE
Alice Brown (a child, suing by Kate Brown her mother and litigation friend).
Protected parties EXAMPLE
Adam Black (a protected party by Ciara Dunn his litigation friend).
A child
Any person under age of 18 (CPR 21.1(2)
A protected party
Any person who lacks mental capacity to conduct the proceedings within the meaning of the MCA 2005. This means by reason of impairment or disturbance of the brain or mind, the P is unable to make the decision in question at time it needs to be made (CPR 21.2(1).
Person of adult ages presumed to have capacity until contrary is proved. Burden of proving the contrary rests with whoever asserts incapacity.
Legal advisers must be satisfied that P is capable of understanding, with the assistance of such proper explanation from legal advisers, the issues on which the party’s content or decision is likely to be necessary during the proceedings.
In determining capacity, legal advisers should ask:
- Can P recognise problem they encounter?
- Can P explain with sufficient clarity the problem to those from whom they seek appropriate advice?
- Can P understand and evaluate the advice received from an appropriate source?
- Can P understand the effects of choosing one course of action over another and give effect to their chosen course through instruction?
GP report may be required in first instance. If concerns are legitimate may need advice from psychologist or psychiatrist.
Litigation Friend - children/protected P’s are represented in civil proceedings by a LF whether they are commencing or defending the proceedings.
P may act as a LF with or without court order provided they:
- Can fairly and competently conduct proceedings on behalf of child or protected party;
- Have no adverse interest to that of the child or protected party and
- Where child or protected party is a claimant, undertakes to pay costs which child/pp may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child/pp.
Role of a litigation friend / appointment
Litigation Friend - children/protected P’s are represented in civil proceedings by a LF whether they are commencing or defending the proceedings.
P may act as a LF with or without court order provided they:
- Can fairly and competently conduct proceedings on behalf of child or protected party;
- Have no adverse interest to that of the child or protected party and
- Where child or protected party is a claimant, undertakes to pay costs which child/pp may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child/pp.
Appointment:
- Often a relative or a person court has appointed to act.
- Usually appointments made without court order by filing and serving certificate of suitability demonstrating that the LF satisfies the above criteria either at the time the claim is made or when the child takes he first step in the proceedings. If a court order is required, a specific procedure must be followed.
- Alternatively, for a protected party, the CoP may appoint someone to conduct proceedings on the protected party’s behalf under CPR 21.4(2).
- The court may also make an order permitting the child to conduct proceedings without a LF.
Service on children/PP:
- Special provisions for service.
- Any doc due to be served on child or pp must be served on the LF.
Limitation - PI and Fatal Accidents
Personal Injury Claims:
C must bring a claim within… 3 years of the latest of:
(a) the date when the cause of action occurred;
(b) the date of knowledge of the person injured.
Fatal Accidents (dependants compensation claim):
A) A claim cannot be brought if the person injured could no longer bring a claim (mostly need to apply PI rules);
B) A Claim cannot be brought after 3 years from the later date of:
i - date of death
ii - date of knowledge of the dependant.
Date of knowledge (s14) means knowing:
a) that the injury was significant;
b) that it was attributable (at least in part) to the alleged wrongdoing;
c) the identify of the defendant;
d) if it is alleged that the wrongdoing was by someone other than D, the identify of that p and the additional facts supporting bringing the claim against D.
Extensions of time - equitable balancing the prejudice to C caused by the limitation period with any prejudice caused to D which allowing the claim would cause, the court will consider
- conduct of P’s
- reason for delay; and
- effect of such a late claim on the evidence.
Limitation on contribution claims
2 years from date on which right to recover contribution arose:
Calculation:
a) date judgment given imposing liability on 1st party;
b) cases where 1st party agreed to settle, the date on which amounts payable was first agreed.
Negligence claims (other than PI) limitation periods:
Extended to later of:
a) Six years from when the cause of action accrued; or
b) 3 years from when he had the requisite:
i) knowledge; and
ii) right to bring a claim.
(s14A).
Subject to long-stop limitation date of 15 years from the date of the latest negligent act/omission which caused all or part of the damage (s14B).
Date of knowledge - C needs to know the material facts about the damage in respect of which damages are claimed. FACTS not that they had a claim!
Dates of knowledge include knowledge which C might reasonably have been expected to acquire from an expert/facts observable/ascertainable by them.
Limitation on Judgments (s24)
An action to enforce a judgment cannot be brought after 6 years from when the judgment became enforceable, nor can interest be recovered after that period.
Limitation: Tort and Contract
General rules (ss2 and 5):
Action in tort or contract - Limitation Period expires 6 years after the date on which the cause of action accrued.
Tort - date from which cause of action accrues.
Contract - date of the breach of contract.
Tortious claims - time starts to run from the date of actionable damage.
Extension of limitation periods due to disability (s28 LA 1980)
If C is under a disability at the time that the cause of action accrued, the limitation period starts to run from when the disability ends and is:
a) 2 yrs in relation to contribution claims
b) 3 years in PI/Fatal Accident claims; and
c) 6 years in most other cases.
P is under a disability whilst they are a minor (meaning under 18) or lacks mental capacity to conduct proceedings (under MCA 2005). s38.
Limitation - Fraud, concealment, mistake (s32 LA 1980)
Where a claim is:
a) based on fraud; or
b) any fact relevant to the cause of action has been deliberately concealed by D; or
c) the action is for relief from the consequences of a mistake; then
limitation does not start to run until the C discovers the fraud, concealment, or mistake (or could with reasonable diligence have discovered it).
Consequences of non-compliance with the pre-action protocols
> Costs
Interest
Staying proceedings until relevant steps taken
Request for explanation.
Justification of non-compliance;
> Limitation period set to expire
> Another reason for urgent proceedings or for the element of surprise.
Pre-action protocol for PI claims
- C should write a Letter of Notification to potential D giving brief details to enable D to notify its insurer;
- P’s consider any rehabilitation needs (ie ongoing medical and care needs) and how to address them;
- C should write to D to give full details of the claim (Letter of Claim)
- D to acknowledge letter of claim within 21 days.
- D to investigate and send full Letter of Response within 3 months of letter acknowledging the claim. If D denies liability or quantum (or both) then…
- P’s should disclose key docs, engage in appropriate negotiations and make proposals for settlement. C should send schedule of losses giving details of losses.
- Joint selection of quantum expert (ie medical report) or claimant disclosed medical report and D sends written questions.
The Practice Direction for pre-action protocols
C should write to potential D to give details of claim (letter of claim)
Within a reasonable period (depending on claims complexity) , D should send a response letter. Letter must either…
a. accept the claim; or
b. reject the claim (in whole or in part) giving reasons.
The parties should disclose key docs, engage in appropriate negotiations and make proposals for settlement.
Defence content
The Defence statement must react to every point / allegation in the claimants Particulars of Claim, they must either….
- Admit,
(anything which is uncontroversial or undisputed) - Deny, or
(including reasons WHY!) - Require proof
The defence must also set out there version of events.
The defence must also include
> D’s address for service (if not stated in acknowledgement of service)
> D’s residence / business address (if claim form doesn’t state this)
> Any limitation defence
> Any dispute as to the statement of value
> Response to schedule of past/future losses in PI claims with either - admit, deny or require proof.
> Any matters to do with mitigation or reduction of damages
> Set-off
> Other defences - not included in the claim e.g. fraud/illegality
> Human Rights arguments / relief sought
> Any counterclaims
If C has used any ‘defined terms’ in its particulars of claim, adopt these by stating at the beginning of the defence ‘The definitions used in the Particulars of Claim are adopted’.
1st para of PoC is usually the introduction of each party, this should not be controversial and therefore can usually be admitted in the defence e.g. ‘Paragraph 1 of the PoC is admitted’.
The allegations in the particulars of claim will be admitted, denied or put to proof. Examples
‘Paragraph 6 of the PoC is denied [a reason and alternative version would be given].
‘The claimant is required to prove paragraph 7 of the PoC.’
At or near the end of a defence a paragraph often referred to as a ‘general denial’ is usually included. This denies the entitlement of the claimant to the sum, or any part of the sum, being claimed. E.G. ‘In the circumstances, it is denied that the Claimant is entitled to the amount claimed or any amount.’
As with all statements of case, the defence will start the case heading at the top, and will end with a statement of truth.
Claimants reply to the defence
> Optional!
Purpose is to allege facts in answer to the defence which were not included in the claim - the contents will therefore be factual allegations which answer ‘new’ points raised in the defence. No structure for a reply.
Should be filed with the directions questionnaire if C intends to file one. (DQ is a case management doc which the court directs to be filed after a claim is defended, the parties are given at least 14 days notice of the deadline for doing so).
The reply should be the last statement of case in a claim and permission of the court is needed to file any statement of case after the reply.
Prescribed form for cost budgets (Precedent H (3D PD 4))
Must be filed with the parties directions questionnaires when the stated value of the claim is less than 50k.
Any other case it must be filed 21 days before the first CMC.
- Practitioners must set out any assumptions on which the budget is based and any possible contingencies (anticipated but which may not be necessary e.g. app for specific disclosure).
- ## Must be signed with its own form of statement of truth ‘This budget is a fair and accurate statement of incurred and estimated costs which it would be reasonable and proportionate for my client to incur in this litigation.’
Budget discussion reports
Should be filed / exchanged no later than 7 days before the first CMC.
Parties will indicate:
A) figures agreed and not agreed for each phase of litigation; and
b) brief summary of the grounds of dispute.
Costs management conference
Court will consider the parties’ budgets and budget discussion reports. Usually takes place at first case management conference but the court CAN at its discretion convene a hearing solely for purposes of costs management - costs management conference.
Consequences of consideration
1. Case management directions
2. Costs management orders (‘CMO’) - court can make these at any time, court will consider whether the budgeted costs fall within the range of reasonable and proportionate costs and the CMO will:
a) record the extent to which the costs budgets are agreed between parties. agreed figures cannot be changed by the court.
b) where the figures are not agreed, ‘record the court’s approval of a costs budget, after making appropriate revisions’.
3. Assessment if no costs management order - position is less strict, if difference of 20% or more between costs claimed on detailed assessment and costs shown in budget, the receiving party must provide a statement of the reasons for the difference with the bill of costs and the court may reduce the recoverable sum if the paying party reasonably relied upon it in the budget.
The budget is a cap on what can be recovered but the fundamental principle is that a party cannot recover a greater sum for costs from an opponent than it has in fact incurred.
Costs budgets can be amended if there are significant developments in litigation but not to correct! - should be sent to other parties for agreement and filed with the court for its consideration.
Failure to file - automatically treated as having filed one comprising of only the applicable court fees unless court otherwise orders. DO NOT OVERLOOK THIS!
CCMC - Costs and case management conference.
