Dispute Resolution - Fundamentals Flashcards
Pre-action steps - Limitation
Before issuing proceedings for the claimant, ensure the client is within the limitation period. What is the basic rule?
The claimant has 6 years from the cause of action to send the claim form with the court, meaning:
- from the breach occurring (but check contract for a specified period)
- from the tort occurring.
Note: 3 years for personal injury (or discovery of injury)
Note: for children, the time limit does not run until their 18th birthday.
The time stops running once the court receives the claim form.
Pre-action steps - Limitation
In negligence, the claimant generally has 6 years from the date that the damage occurs. What is the exception?
What is the longstop?
Latent damage:
- 6 years from the date of the damage occurring; or
- 3 years from the date of the claimant’s knowledge of the damage, whichever is later.
- 15-year longstop.
Example: suppose the damage occurs in 2020. The claimant discovers it in 2021. The limitation period is 2026 (“whichever is later”).
Pre-action steps - Ethics
You must act in the best interests of your client. This means you should not encourage them to…
…make a claim where there is a limited prospect of success.
Pre-action procedure
(a) Before issuing proceedings, what must the parties comply with?
Provide three areas for which these exist.
(b) For areas that do not have these, the parties must comply with the…
(a) Pre-action protocols
- Debt claims
- Personal injury
- Professional negligence.
(b) Practice Direction on Pre-Action Conduct and Protocols (PDAC)
Pre-action procedure - Principles of PDAC and the protocols
What are five principles common to both the PDAC and the protocols?
- Litigation is last resort
- Parties should exchange sufficient information and disclose key documents.
- The claimant should write to the defendant with concise details of the claim
- The defendant should respond within reasonable time;
- identify, narrow and resolve the legal, factual and/or expert issues.
-
Defendant responding within reasonable time = 14 days in straightforward cases or 3 months in complex cases. Include confirmation of whether all or part of the claim is accepted, and if not, the reasons why. Details of any counterclaim.
The overarching themes are to consider ADR, attempt to settle and exchange information.
Pre-action procedure - Failure to comply with PDAC and Protocols
Sanctions can include:
- Paying all or part of the opponent’s costs
- No interest or damages for claimant at fault
- Enhanced interest on damages for defendant at fault to pay interest
A false claim in a pre-action protocol letter, may give rise to contempt of court.
Pre-action protocols - Debt Claims
When does the Pre-Action Protocol for Debt Claims (PPDC) apply?
The claimant must give full information of the debt owed, including (2 pieces of information)
How many days does the debtor have to respond?
When a business (including sole traders and public bodies) brings a claim against an individual debtor.
- A statement of account containing details of interest and charges, and
- How the debt can be paid.
30 days
The creditor should allow for extra time if necessary for the debtor to seek legal or debt advice in order to pay.
Pre-action protocols - Professional Negligence
This is mostly the same as the PDAC, but some additional requirements are:
- The claimant should:
- The professional should then:
- The claimant should then:
- The professional should:
- Claimant: notify the professional in writing of their claim
- Professional: inform their insurers and acknowledges the notice in writing within 21 days of receipt.
- Claimant: write a Letter of Claim
- Professional: acknowledge receipt of the Letter of Claim within 21 days, after which the professional has 3 months to write a Letter of Response.
The claimant’s notice should include:
(a) information about the claimant;
(b) a brief outline of the grievance; and (if possible)
(c) a general indication of the financial value of the claim.
Jurisdiction
What is the effect of the 2005 Hague Convention in relation to jurisdiction?
If a contract contains an exclusive jurisdiction clause designating the court of a contracting state, that court must hear the case.
Jurisdiction: Common Law
When does common law apply in relation to jurisdiction?
Where there is no exclusive jurisdiction clause.
Jurisdiction: Common law - Service within England and Wales
Under common law, when can the courts of England and Wales hear proceedings without permission?
On what basis can the defendant object?
When the claim form was served while the defendant was in England or Wales (no matter how briefly)
On the grounds that the courts of England and Wales are not the most appropriate for resolving the dispute.
Jurisdiction: Common law - Service outside of England and Wales
Under common law, when would the permission of an English court be required for it to hear proceedings?
In relation to contractual disputes, permission will be granted if (3 circumstances):
In relation to tort, permission will be granted if (2 circumstances):
If the claim form was not served while the defendant was present in England or Wales.
Contract
- Made or breached in England;
- Governed by English law;
- Contains an agreement conferring jurisdiction on the English courts.
Tort
- Tort committed in England; or
- Loss sustained in England
There may be separate rules in relation to Scotland and Northern Ireland. Not really covered in the Ulaw books.
Jurisdiction: Disputing the court’s jurisdiction
What is the procedure for a defendant who wishes to dispute the court’s jurisdiction?
The application must be supported by evidence that…
What is the consequence of the court refusing the application?
- State in the acknowledgement of service.
- Challenge the court’s jurisdiction within 14 days of filing the acknowledgement of service.
England and Wales is not the proper forum.
The original acknowledgement of service ceases to have effect and the defendant must file a further acknowledgement within 14 days.
Commencing Civil Proceedings
The most important element in determining the venue will be the amount in dispute:
If the value of the claim is ____ or less, it [may/must] be started in the County Court.
If the value of the claim exceeds ____, it [may/must] be started in the High Court.
£100,000, MUST
£100,000, may
Note: A claim for damages for personal injury may be started in the High Court if the value of the claim is $50,000 or more.
Note: if the claim is issued in the High Court, the judge may transfer the matter to the County Court at a later date.
Commencing Civil Proceedings: County Court
Which court hears most civil cases (‘Part 7 claims’)? In particular it deals with…
For all other civil claims in the County Court, the claimant would…
The Civil National Business Centre (CNBC); money claims (specified and unspecified)
issue proceedings in a County Court hearing centre local to them.
Specified = debt claim
Unspecified = damages where amount in dispute needs to be quantified.
Commencing Civil Proceedings: High Court
What are the three High Court divisions and what do they each deal with?
- King’s Bench Division: primarily contract and tort.
- Chancery Division: land and trust, inheritance, partnership and company law.
- Family Division
Issuing Proceedings
What does the claimant do to start proceedings?
When are proceedings formally started?
When is a claim ‘brought’ for limitation purposes?
Sends the claim form (form N1) to court.
When the claim form is issued by the court.
When the claim form is received by the court.
Issued = the file is opened.
Other relevant documents to be sent alongside claim form:
- Particulars of claim (although it can be sent separately)
- Documents required to be annexed by the CPR (e.g. a copy of the contract).
Note: you will need to do practice mocks to understand how to draft the claim form.
Claim Form drafting: statement of truth
- What are the requirements of the statement of truth?
- If the particulars are served separately, do they also need to be verified?
- Either the party or their legal representative can sign. Where an individual signs on behalf of a party, what should be added to the statement of truth?
- Where a legal representative signs a statement of truth, what is the solicitor confirming? (three points)
- What are the consequences for failure to include a statement of truth?
(1) Signed and dated
(2) Yes.
(3) “I am duly authorised by the [party] to sign this statement.
(4) That the client:
- believes the facts are true;
- authorised the solicitor to sign;
- was warned of the possible consequences of a dishonest belief (contempt of court).
(5) The claimant will be precluded from relying on its contents. The court may also strike out the document.
As the solicitor, sign in your own name and not in the firm’s, but state the capacity in which you sign and add the name of the firm where appropriate.
Adding, removing or substituting a party
Is permission of the court required for a party to be added, removed or substituted?
In what way is this limited?
No, unless the claim form has already been served.
A person cannot be added or subsituted as a claimant unless their written consent is filed at court.
Adding, removing or substitutng a party: Grounds
A. What are the 3 grounds where the application is made within the limitation period?
B. What is the requirement where the application is made outside the limitation period? Secondly, what are the 3 grounds?
A. Within the limitation period
It is desirable to:
- add a new party to resolve disputed matters.
- remove a party; or
- substitute a party where the existing party’s interest has passed to them.
B. Outside the limitation period
Requirement: A party may only be added or substituted if the limitation period was current when proceedings commenced.
Grounds:
- Original party named by mistake;
- Original party died or is bankruptcy and their interest/liability has passed to the new party; or
- the claim cannot properly be carried on without the new party
Commencing Proceedings: service of the claim form
Once a claim form is issued, it must be…
To serve the claim form on a firm of solicitors, the defendant must have…
….served on the other parties within four months.
…nominated them in writing.
Service: the document is sent/delivered to the defendant so they are aware of the existence of proceedings.
It should not be presumed that the defendant’s solicitors have been nominated just because the firm has represented the defendant in pre-action negotiations.
Once nominated, all court documents are served on the lawyers, unless an exception applies that requires personal service (e.g. an injunction).
Commencing Proceedings: service of the claim form
What are the five methods of service under the CPR?
- Personal service
- First class post or document exchange (DX)
- Leaving the claim form at a specified place
- Fax or other means of communication
- Any other method authorised by the court.
Commencing Proceedings: service of the claim form
What does personal service mean in relation to:
(a) an individual
(b) a partnership
(c) a company
(a) handing the claim form to an individual;
(b) leaving the claim form with a partner or person in control of management;
(c) leaving the documents with a person who holds a senior position (e.g. director, treasurer, secretary or chief executive).
Commencing Proceedings: service of the claim form
Leaving the form at a specified place
Delivering the claim form by hand to an address specified by the CPR is possible. What are the default positions in relation to:
(a) An individual
(b) A sole trader or individual partner;
(c) A company
(a) Usual or last known residence
(b) Usual or last known residence or principal or last known place of business
(c) Principal office or place of business within the jurisdiction with a real connection with the claim.
Note: where no solicitor is authorised to accept service and the defendant has not given an address for service, these are the default positions.