Dispute Resolution Procedures Flashcards
What are the pre-action steps you must take?
letter before claim (14 days to respond & 3 months for complex cases) -> ADR -> claims form
should try ADR & reasonable and proportionate steps & costs to resolve matter
What’s the purpose of Practice Directions?
What is the PD for debt claim
prof neg & PI
to encourage exchange info, identify factual issues & resolve out of court
reasonable & proportionate steps to resolve matters & proportionate cost
Debt claim: 30 days to respond, include
Amount claimed
Interest
Charges
Agreement (oral or written)
How to pay
Offer to pays why reject?
Information sheet
Reply form
Prof neg & PI
send notice first
then LBC
D has 21 days to ack & 3 months to respond
How do you write a Letter Before Claim?
Dear XYZ,
Subject
Letter Before Claim
We act for XYZ of ADDRESS
Our instructions are to recover XYZ.
The facts
Legal Basis of Claim
Factual Basis of claim
Liability
We have advised our client that your actions were in breach of XYZ and that they are entitled to be compensated by you.
Damages:
damages claimed:
Documents enclosed:
The following documents are relied on by our client in support of the claim and copies are enclosed. List docs & their relevance
Your documents:
Please provide to us within 14 days copies of the following documents, which we believe are relevant to this matter and likely to be in your control.
This is not purported to be an exhaustive list relevant to this matter. Please confirm that you will take proper and appropriate steps to ensure no relevant docs (inc electronic) in your control are destroyed, lost or disposed of.
ADR
Set out Mediation or Arbitration
Practice Direction: Pre-Action Conduct
This letter is being sent to you in accordance with the Practice Direction: Pre-Action Conduct and Protocols contained in the Civil Procedure Rules (CPR). In particular we refer you to para 13-16 which concerns the court’s powers to impose sanctions for failing to comply with its provisions.
Acknowledgement & Response Deadline
Please acknowledge safe receipt of this letter and provide a full response no later than 14 days from receipt (up to 3 months for complex cases). If we do not receive an acknowledgement or response within this timeframe, we will initiate court proceedings with an associated claim for interests and costs.
Yours faithfully/sincerely,
How long does D have to respond to a letter before claim?
14 days to respond to letter before claim (3 month complex)
Failure to engage with Preaction protocol might result in?
paying opponents costs
not getting interest on damages
paying 10% above base rate interest on damages
How is juris decided?
Serve in England: automatic
Serve outside: need court permission & need to show Court’s Best Placed Forum Determination (England and Wales is the proper place- to hear the claim)
when filing claims form- (contract clause, breach here, contract made here or loss here, domiciled here.) Good & arguable case
- no permission to serve outside if serving in Scotland or NI, or if theres a clause for english jurisdiction
What do you put in the brief claims bit of N1? What about statement of value & financial summary?
a. court
b. party addresses
c. brief details of claim & remedy: A&B made contract, A breached & D suffered, D claims damages & interest.
d. statement of value: specified amount + interest
unspecified: The Claimant expects to recover more than £100,000
under 100k -> add track figures
e.. defendant etails
f. financial summary of claim (specified sum + interest)
g. preferred county court hearing centre
h. vulnerable witnesses
i. HRA issues
j. whether particulars are attached
k. statement of truth
l. annexed docs
How do you write a particulars of claim?
Court, division & registry
Claimant
and
Defendant
Particulars of Claim:
1. At all material times, the claimant was a company doing XYZ and the defendant was a company doing XYZ
2. On DATE, the parties entered into a contract for X to do Y
3. In purported performance with the contract, X did Y.
4. In breach of the terms or implied terms of the contract, D did not provide X / exercise reasonable care and skill.
Particulars of the breach (state all defects)
a) D supplied broken chairs
b) D did not glue the chair properly
c) The chairs were the wrong colour
- Consequently, C could not XYZ and had to engage XYZ.
- The Claimant suffered damages and loss as a result of the defendant’s breach.
Particulars of damage and loss
a) £60,000: damages
£30,000: paid by the claimant (pursuant to clause 3)
£70,000: paid to new company
£40,000: minus the contractual cost of chairs
= £60,000 damages
b) loss of profit
- In respect of damages awarded, the Claimant is entitled to interest pursuant to (s.35A Senior Courts Act 1981 or s.69 County Courts Act 1984) at such rates and for such period as the court thinks just.
AND THE CLAIMANT CLAIMS
1. Damages under para 6
2. Interest under para 7
Date: of submission
Statement of truth:
I believe that the facts stated in the these Particulars of Claim are true. I understand that proceedings for contempt of the court may be brought againt anyone who makes or caused to be made a false statement in a document verified by a statement of truth without honest belief in its truth.
I am duly authorised by the Claimant to sign this statement (if legal rep signs or if rep from company signs)
Signed:
How can a party request amendment of Statement of Case?
Part 17: both parties can agree or party can apply to court for perm and show:
within limitation:
- complies with overriding obj of dealing with case justly and fairly
- effect on parties
outside - FNC
- out of subs or same Facts
- genuine name mistake
- altering capacity of claim
What is the procedure for making interim applications part 23 CPR?
file N244 form
file WS with grounds
file draft order
serve application notice on R at least 3 clear days before hearing
How does track allocation work? How long does trial last & expert witness? What are the differences between diff tracks? eg duration of hearing, costs management, disclosure & cost management?
After defence is filed, court officer will serve proposed track allocation notice
Claim value: will be assessed on damages only (no costs or interest)
County Court:
10k (5k for PI): small claims, no costs, no disc
10- 25k: fast track: fixed costs, trial under 1 day, disc only what is necessary, 1 expert
25-100k: intermediate, fixed costs, trial up to 3 days, disc only what is necessary, 2 experts
Costs in DQ
High Court;
100k+: multi track, costs budget submitted 21 days before CMC 2 expert witnesses. Court provides case directions & timetable.
Costs management order for parties to stick to costs
What is the directions questionnaire, what does it include and how should it be completed?
N181 form - completed by both parties after allocation before set deadline
1. Pre-action protocl
2. Case management info
3. Expert witnesses
4. Trial estiamtion
5. Draft order for directions (ADWETCS)
What is disclosure for the different tracks?
- No disclosure for small claims but all docs relied on should be served 14 days before hearing
fast: disc is limited to what is necessary
intermediate: disc is limited to what is necessary
multi: if no CMC, file disc report in DQ otherwise file 14 days before CMC (standard, specific, issue by issue)
What is a costs budget? When is it filed?
Expenses incurred & expected.
Filed with directions questionnaire (claims under 50k)
(claims over 50k) Or 21 days before CMC (otherwise only disbursements will be approved)
What is the purpose of a CMC? Who must attend it?
to check in on parties & their preparation. A legal rep who knows the case must attend.
What happens if a party doesn’t comply with an order?
Other party can apply to court for enforcement
Case can be struck out (or conditional ‘unless order)’
or costs can be paid on indemnity basis
What should expert evidence include? Who do they have a duty towards? How is the discussion between experts arranged and conducted? How should the report be addressed?
Only include what is reasonably required to resolve the issue
Can give opinion
Duty to assist the court in providing unbiased information
duty to party to exercise reasonable care & skill
The court will give a date for experts to meet and discuss, consolidate agreement. No parties or judge can attend.
The report should be addressed to the court & include the expert’s qualifications & sources relied on + SoT.
What should happen when you use a witness statement? What must it be? Is hearsay allowed? How is it judged? How is it given in court
Part 32, It should be served on the other party
must be relevant, relating to disputed matters
Can give facts personally perceived but no conclusions
Hearsay is allowed but other side must be served the statement (otherwise still admitted but less weight given)
Opposition can examine original maker of statement or serve notice of intention to attack cred of hearsay ev
Judge will consider relevance & importance to issue & probative value
Forms part of trial bundle, read out & witness takes oath confirming it
What happens if a witness is uncontactable?
you can apply to the court without notice
& serve a written witness summary with W’s details & any evidence they can provide.
How is a witness summoned?
Their availability is checked in directions questionnaire but if they do not come, party can apply to get court to serve a witness summon which should be served at least 7 days before trial.
Who is disclosure between and what is the form?
N265 & only between parties
What are the 3 parts of the disclosure form? What is the duty to search? Who must disc statement be signed by?
Signed by party (overseeing disc)
anything that you rely on
or that can help or weaken the case.
Any docs in your control.
Must make reasonable and proportionate search for all docs (inc electronic stored, even on back up)
part 1: open for inspection
eg Copy letter from Elisabeth Jenkins to the Claimant dated 29 June 20XX
part 2: privileged docs described generically
advice privilege: legal advice given by sol is privileged
litigation privilege: any advice given in contemplation or during proceedings is privileged
I object to you inspecting these documents because:
As to 1), the documents were created with the sole or dominant purpose of providing and receiving legal advice and are therefore protected by legal advice privilege
As to 2) the documents were created when litigation was reasonably contemplated or after litigation was commenced for the sole or dominant purpose of obtaining or collecting evidence and are therefore protected by litigation privilege.
part 3: any docs lost or destroyed
How does disclosure happen with CMC? What about small claims?
A disclosure report should be iled before the CMC 14 days before & court will make disclosure order.
Small claims: no disc, all docs which you will rely on should be served 14 days before trial
What happens if you want further info (specific disclosure)
A should ask R first in writing
then can apply with n244 form & application notice & WS
