Dispute Resolution Revision Flashcards
Following compliance with the pre-action protocols, when resolution is not achieved but the claimant decides not to continue with the claim, it is unlikely that the defendant will be able to recover any costs
When issuing a claim against a partnership, the full name of the partnership should be used, along with “(a firm)” to indicate that it is a partnership
Following receipt of a defence or admission, the court will normally transfer a claim to the hearing centre local to the defendant’s home address (if the defendant is an individual) or the claimant’s preferred hearing centre (if the defendant is a company)
A personal representative can start proceedings on account of the decedent’s death within 3 years from the date of death or 3 years from the date the personal representative obtained knowledge of the death, whichever is later
A claimant must serve the issued claim form within 4 months of the date of issue, failing which the court will not permit the claimant to continue with the claim
With a few exceptions, non-specified claims for damages are issued out of the County Court Money Claims Centre (‘CCMCC’)
When a claimant issues proceedings after the limitation period has expired, the appropriate course of action is for the defendant to allege in the defence that the claimant has issued after the relevant limitation period has expired. It is then incumbent upon the claimant to make an application to the court to dis-apply limitation.
If the claimant proposes to rely upon a defendant’s conviction, it is important to refer to it in the Particulars of Claim. Failure to do so will lead to objections from the defendant when attempts are made to rely upon the conviction in due course
A claimant who wishes to make an application for summary judgment may do so as soon as the defendant acknowledges the claim. The claimant need not wait for the defendant to file a defence
If no specific protocol applies, the practice direction on pre-action conduct and protocols will apply to a claim
There is no requirement to address funding in the practice direction on pre-action conduct and protocols
Following service of the claim form, a claimant has 14 days to serve the Particulars of Claim. However, service must take place within 4 months of the issuance of proceedings. Therefore, if allowing 14 days after service of the claim form would take the date beyond the four months allowed for service of the claim form, the claimant must serve before the four months expires
Generally, claims exceeding £100,000 are issued in the High Court
The Chancery Division of the High Court is the division that handles equity and trusts
Whilst there may be no power to force parties to consider alternative dispute resolution, the court may consider sanctions for not doing so
The claimant must serve a Notice to Admit Facts no later than 21 days before trial. If the defendant does not admit and the claimant proves the fact at trial, the defendant may be responsible for the costs of proving the fact regardless of the outcome of the case
A party is under a duty to disclose documents on which they will rely plus any documents which affect their case adversely, affect the other party’s case adversely, or support the other party’s case. This duty extends only to documents that are or were in the disclosing party’s control (that is, documents that are or were within the party’s possession or as to which the party had or has a right to possess, inspect, or copy). A party who is not content with disclosure can apply for an order for specific disclosure by explaining why they think the document sought likely exists and that it is within the documents that must be disclosed
The court can order a person to cease to be a party if it is not desirable for them to be a party in the proceedings, and such removal does not depend on whether the limitation period has expired
When a party dies, the court may grant an application to substitute the decedent’s personal representative even after the limitation period has expired
An application to add a party cannot be granted after the limitation period has expired
If the defendant is concerned that the claimant will not be able to pay the defendant’s costs if the defendant wins the case, the defendant may apply for a security for costs order. However, the court will grant such an order only for specific situations set out in statute and court rules, such as where the defendant can show the claimant resides outside the jurisdiction, the claimant is a company and there is reason to believe it will not be able to pay, the claimant has taken steps with regard to its assets to make it difficult to enforce an order for costs etc.
Any documents send by post will be deemed served on the second business day after it was posted
The duty to disclose is not limited to documents that are or were in a party’s possession; a party must disclose documents within their control, which includes documents a party has or had a right to possess, inspect, or copy, in addition to documents that are or were in the party’s possession
If a judgment debtor does not pay on a judgment, the judgment creditor may apply for an order requiring the judgment debtor to attend court for oral examination to provide information about the debtor’s means and assets. This information will allow the homeowner to assess what is the most viable method of enforcing judgment
If a witness is unable to attend but a party wishes the court to consider the signed statement of the witness at the trial, the court will treat this as hearsay evidence. A judge will not place as much weight on hearsay evidence. This is because the other side will not have the opportunity to question the witness in cross-examination and thereby test the strength of the evidence
A defendant can only make an application of notice to call a witness and/or a notice to attack credibility if they know where the witness lives
The claimant must prepare a minimum of 6 trial bundles and they must be filed between 3 and 7 days before the trial is to take place. Thus, they cannot be filed less than three days before trial
The pre-trial review case summary should not exceed 500 words
An appeal hearing is limited to review of the decision of the lower court, and the court will not permit the defendant to rely upon new evidence that was not available at the original hearing without permission
A claimant must serve an issued claim form within 4 months of the date of issue, failing which the court will not permit the claimant to continue with the claim. It will be extremely difficult to persuade the court to allow the claim to continue if the claimant fails to serve in time.
The defendant will be ordered to pay all of the claimant’s costs up to the end of the relevant period of the defendant’s offer, and the claimant will be ordered to pay the defendant’s costs incurred thereafter. If a defendant makes a Part 36 offer, the claimant does not accept the offer, and the claimant wins the claim but does not beat the offer at trial, the defendant will usually be ordered to pay the claimant’s costs up to the end of the relevant period of the defendant’s offer, and the claimant will usually be ordered to pay the costs the defendant incurred thereafter.
The Particulars of Claim (that is, a written statement setting out the details of the claimant’s case) may be in a separate document or on the back of the claim form. If drafted in a separate document, it must be served within 14 days of the claim form.
If a defendant proposes to argue that service was not valid, the appropriate course of action is to file the acknowledgement of service stating that the validity of service is not accepted. Then the defendant should lodge an application within 14 days seeking an order to have the claimant re-serve the proceedings in a proper manner. This may be difficult for them if the time period for service has expired.
A defendant who wishes to dispute a court’s jurisdiction must tick the relevant box on the acknowledgment of service form and make an application, supported with written evidence, within 14 days of the deemed date of service. The defendant must not file a defence until after the court has heard the application. Filing a defence is likely to be taken as submission to jurisdiction that would negate the challenge.
In the UK, a claim must be served within 4 months of issuance of proceedings but service outside the jurisdiction the claim must be served within 6 months
If the claimant’s statement of case discloses no reasonable grounds for bringing the claim, the defendant’s best course of action is to make an application to strike because filing a defence would prolong the litigation; an application to strike can terminate a baseless claim more quickly. However, the defendant must also acknowledge service; otherwise, a default judgment may be entered against the defendant.
If the injured party is a minor, time does not start to run on a claim until the minor’s 18th birthday
FOLLOWING RECEIPT OF A DEFENCE OR ADMISSION, the court will normally transfer a claim to the hearing centre local to the defendant’s home address (if the defendant is an individual) or the claimant’s preferred hearing centre (if the defendant is a company).
The claimant must serve the notice requiring proof of authenticity of a document no later than the last date available for the exchange of witness statements. If the defendant had served the document late in the case, after witness statement exchange, the claimant must serve the notice within 7 days of disclosure.
Attempting alternative dispute resolution is strongly encouraged but not required
An arbitral award is enforceable in England and Wales if the court gives judgment in terms of the award
In a tort action, when could the limitation begin to run?
- At the date of the accrual of the cause of action
- When the victim first sustains damage
- When the victim first gains knowledge of the facts establishing a claim
Under the Latent Damage Act 1986, what is the limitation period for bringing a claim with respect to a defect in a property caused by a fault in design, materials, or workmanship that existed at the time construction was completed but that was not apparent at the time of completion?
- Not longer than 15 years after the alleged negligent act
or
- 6 years from the date of accrual of the cause of action
or
- 3 years from the earliest date on which the claimant knew, or reasonably ought to have known, material facts necessary to bring an action alleging negligence
A construction contract term that shortens the time to bring an action for bringing a claim is subject to the reasonableness test of the Unfair Contract Terms Act 1977
Under the Personal Injury Protocol the defendant must respond within 21 days. They may indicate that they desire to investigate, in which case they have 3 months to admit or deny the claim
If a party fails to follow the relevant protocol or the Practice Direction, what are the possible consequences?
- A stay of proceedings to allow the Practice Direction or a step in the particular protocol to be complied with
- Ordering the non-compliant party to pay the costs (or part of the costs) of the other party
- If the non-compliant party is the claimant, restricting interest on the claim
What is the threshold for issuing proceedings in the High Court?
More than £50,000 for personal injury claims and £100,000 for other claims
When should a claim form include a certificate of suitability?
When the claimant is under age 18 or lacks capacity
How much time does a claimant have to serve a claim after the claim is issued by the court if the defendant is within the jurisdiction of the court and the claimant has not applied for more time to serve?
4 months
If a claimant and defendant have been communicating by document exchange (DX) because their writing papers include an address for DX, may the claimant serve the claim form by DX?
Yes, unless the defendant has indicated that they do not give permission to be served by DX
Can the period for filing a defence be extended merely on the agreement of the parties?
Yes, for an additional 28 days, and the court must be notified of the extension
Once made, may an admission be withdrawn?
Yes, but only with permission of the court
What must a defendant prove in an application to set aside a default judgment?
That the defendant acted promptly and has a real prospect of successfully defending, and that there is some other good reason why the judgment should be set aside
What level of detail is needed in the Particulars of Claim?
The Particulars should provide enough information to identify the issues and parties so that the judge may give directions to ensure that the trial can proceed promptly, fairly, and proportionately, in keeping with the overriding objective
If a claimant fails to respond to an allegation made in the defence, the failure to respond works as an implied denial
A defendant may issue a third-party (Part 20) claim against the claimant as a counterclaim and to bring a new, third party into the action
A defendant does not need to seek permission from the court to add a counterclaim against the claimant
May a party apply to amend a statement of case to add a party?
Yes, a party may make an application to amend the statement of case to add a party if it can be shown that adding the party will allow the court to resolve all the matters in dispute or to resolve a connected matter
What costs are recoverable in a case heard in the small claims track?
An amount not exceeding £750 to cover an expert’s report.
How long do the parties have to return the Directions Questionnaire in a multi-track case?
28 days after service of the order, and it is not open to the parties to agree an extension
Under the standard fast-track directions, when do the parties make disclosure?
4 weeks from the date of notice of allocation
Under the standard fast-track directions, when will the trial be held?
30 weeks from the date of notice of allocation.
If a party fails to comply with the timetable set by a court in the directions order, this may lead to the court striking out that party’s claim or defence but the court will not strike a claim or defence for non-compliance unless the court has made an unless order setting out such consequences and that order has not been complied with.
Typically, how much notice must be given to the opposing party of the hearing on an interim application?
3 clear days’ notice (5 if by telephone).
What is the minimum timescale for the applicant for summary judgment to notify the respondent of the date fixed for the hearing and the issues to be decided?
At least 14 days
A party does no have to show financial need in order to obtain an order for an interim payment
What is the minimum timescale for the applicant for interim payment to serve written evidence on the other party?
Not less than 14 days before the hearing.
Who may issue an order for a freezing injunction?
Only a High Court Judge
To obtain a search or preservation order, there must be a strong prima facie case on the merits of the underlying claim
For how long may a solicitor retain documents obtained under a search order, where copies are sought?
The solicitor must give an undertaking to return the documents within 2 days
A party has control of a document if the party currently has physical possession of the document; a current right to take possession, to inspect, or to take copies of the document;or if they possessed the document in the past but no longer possess it
A court may alter the standard disclosure order as it sees fit, including by dispensing with disclosure altogether
Who typically signs the disclosure statement certifying that they have carried out their disclosure duty to the best of their knowledge?
The party only
Under the standard fast track directions, how long do the parties have to make disclosure?
28 days from the date of notice of allocation
If disclosure would damage the public interest this would be a valid reason not to disclose
What is common interest privilege?
When there are multiple defendants or group actions, the parties may send privileged documents to each other and claim these documents are still privileged from inspection by other parties
Privilege belongs to the client and can be waived only by the client
What is the effect of a solicitor accidentally sending privileged material to the solicitor of the opponent?
The opponent’s solicitor may use the information only with the permission of the court
How long do the parties have to ask questions of an expert after receiving the expert’s report?
28 days
Typically, when will a pre-trial review hearing take place?
10 weeks before the trial date
When must the trial bundles be filed?
Between 3 and 7 days before trial
If a claimant discontinues a claim before trial, the applicant is liable to pay defendant’s costs of defending the action to that point, unless the case is subject to qualified one-way, costs shifting
How long does a party have to request permission to appeal?
21 days from the time the decision is handed down
As a general rule, the loser in litigation pays the winner’s costs and disbursements
What is the indemnity principle for legal costs?
The winning party may not recover costs greater than what they are liable to pay their solicitor
In a multi-track case, when must the parties file a costs budget?
With the Directions Questionnaire if the claimant seeks less than £50,000, or at least 21 days before the Case Management Conference if £50,000 or more is sought.
In a multi-track case, what is the effect of a party’s failure to file a costs budget?
The party will not be able to recover costs if they prevail
If the winning party’s costs exceed costs budget by more than 25%, the party must file a statement of reasons and the court will not depart from the costs budget figures without a good reason
What is an inter-partes costs order?
It simply is an order in which the judge will order one party to pay the costs of the other party
If a court orders a detailed assessment of costs within 3 months of judgment, the winning party must prepare and serve on the losing party a bill of costs, and the losing party has 21 days to file points of dispute
What is a provisional assessment as it relates to costs?
A statement by a District Judge of the amount of costs they would be prepared to sanction based on the winning party’s bill
If the losing party is not happy with a provisional assessment, what can they do?
Request a detailed assessment within 21 days of receiving the provisional assessment
When must costs be paid?
Within 14 days of issuance of the costs certificate by the court
A claimant has been awarded £4,000 in a case heard in County Court. The defendant has indicated that they will not be able to pay the judgment for six months. Can the claimant charge interest on the **judgment*5 amount?
Yes, if the claimant transfers the case to the High Court for *6enforcement**
How much notice must a creditor give a debtor before taking control of the debtor’s goods to sell them to satisfy the debt?
At least 7 days
If a judgment debtor has an interest in land, a creditor may obtain a charging order which will give the creditor the right to apply for an order for sale. This can apply even if the land is in joint ownership.
If the judgment debtor is an individual in regular employment, a creditor may apply to the County Court for an attachment of earnings order to compel the debtor’s employer to make regular deductions from the debtor’s earnings and then pay them into court. Not available in the High Court.
A defence must be truthful - the respondent must admit allegations that are true, but may deny allegations they believe are false, and say that they neither admit nor deny (that is, issue a non-admission regarding) allegations that are not within their personal knowledge.
It is never appropriate to issue a blanket denial - allegations must be admitted or denied individually
The limitation period for a non-personal injury (‘PI’) negligence-based claim is six years. The time starts to run from the accrual date, which is the date the tortious act occurred.
The proposed defendant must respond to the letter of claim within 21 days, indicating whether liability is admitted. A formal response without admission then gives the defendant 3 months to investigate the claim.
A personal representative can start proceedings on account of the decedent’s death within 3 years from the date of death or 3 years from the date the personal representative obtained knowledge of the death
The claimant need only issue the claim form, not serve it, by the end of the limitation period
Non-specified claims for damages are issued out of the County Court Money Claims Centre (‘CCMCC’)
All County Court damages claims apart from in a few specialist areas of law such as landlord and tenant and possession are issued in the CCMCC
The statement of truth must be completed on the claim form and signed by the client. If the Particulars of Claim are served separately, then the claim form must be verified with a statement of truth
Case law has established that it is unacceptable to ignore a request for alternative dispute resolution (‘ADR’). Any party that believes ADR is inappropriate must respond, clearly setting out their reasons. The court has discretion to penalise the party in respect of the legal costs they can recover, regardless of the outcome of the case.
When a claimant issues proceedings after the limitation period has expired, the appropriate course of action is for the defendant to allege in the defence that the claimant has issued after the relevant limitation period has expired. It is then incumbent upon the claimant to make an application to dis-apply limitation.
A defendant must respond to a claim within 14 days of the deemed date of service of the Particulars of Claim
If a party fails to comply with directions order, the court usually will not impose a sanction unless the non-defaulting party makes an application for an unless order specifying the sanctions that may be imposed and the defaulting party fails to comply with the unless order. In that case, the court may strike out a defence or claim, impose costs, debar from relying on evidence** etc.
A claimant who wishes to make an application for summary judgment may do so as soon as the defendant acknowledges the claim
The defendant must ensure that they serve evidence in support of their objection at least 7 days before the hearing. If not, the court is unlikely to consider it.
There is no requirement within the pre-action conduct and protocols to address funding in the letter of claim
If the Particulars of Claim (that is, a written statement setting out the details of the claimant’s case) are not included on the back of the claim form, they may be in a separate written document served along with the claim form or within 14 days following service
Following service of the claim form, a claimant has 14 days to serve the Particulars of Claim. However, service must take place within four months of the issuance of proceedings.
A claim worth in excess of £100,000 can be commenced in the County Court, which has unlimited jurisdiction. However, if the claim also involves complex issues, it should not be brought in County Court.
The Chancery Division of the High Court is the division that handles equity and trusts
When valuing a claim for damages (that is, a claim for an unspecified amount) for purposes of the claim form, the claimant should disregard interest, costs, contributory negligence, and counterclaims.
A claimant must serve a notice to admit facts no later than 21 days before trial. If the defendant does not admit and the claimant proves the fact at trial, the defendant may be responsible for the costs of proving the fact regardless of the outcome of the case
Litigation privilege will apply so long as it was sent when there was a real likelihood of litigation (a mere possibility is insufficient)
A party who is not content with disclosure can apply for an order for specific disclosure by explaining why they think the document sought likely exists and that it is within the documents that must be disclosed
There is no requirement that a claimant has a genuine need for an interim payment
An application to substitute a personal representative for a deceased person may be granted after the limitation period has expired
If a defendant pays the judgment within 14 days, they can avoid the court recording the judgment in the court register of judgments
The indemnity principle is that a party cannot recover more costs from an opponent than they are liable to pay their own legal representative. The principle applies irrespective of whether costs are ordered on the standard or indemnity basis.
If a claimant makes a Part 36 offer in a case seeking damages, the defendant rejects the offer, and the claimant secures a judgment more favourable than the offer, unless it is unjust, the court may for the period after the time the offer expired:
(1) award interest on the entirety of the claim at an enhanced rate of up to 10% above the base rate and (2) award costs on an indemnity basis with an enhanced interest rate of up to 10% above the base rate
(3) impose additional damages of not more than 10%
A charging order ranks as an equitable mortgage. That is, it gives the creditor the right to apply for an order for sale, even if the land is in joint ownership.
Appeals from a Master in the Hight Court can be made only to a High Court Judge. They will grant permission only if there is a real prospect of success
Although a party seeking to appeal can apply for permission to the same judge at the end of the hearing, if they did not appeal then, they must now appeal to a higher level of judge who will hear the appeal
The court will grant an order for security for costs only for specific situations set out in statute and court rules, such as where the defendant can show the claimant resides outside the jurisdiction, the claimant is a company and there is reason to believe it will not be able to pay, the claimant has taken steps with regard to its assets to make it difficult to enforce an order for costs
A Part 36 offer sent by post will be deemed served on the second business day after it was posted
A Part 36 offer can be accepted at any time, even after expiry of the relevant period, so long as the offeror has not withdrawn it.
Contents of a Tomlin Order
A stay of the case, a confirmation that the parties have agreed settlement, and a schedule confirming the amount to be paid, by whom, and by what date
Under the standard cost basis, the court allows proportionate cost and exercises any doubt in favour of the paying party.
Queen’s bench division cases
Defamation
Breach of contract
Negligence
Personal injury
Land possession
Non-payment of debts
Chancery division
Equity and trusts
Commercial fraud
Tax
Intellectual property
Land
Business disputes
Contentious probate
Regulatory work
Bankruptcy
Professional negligence
Claim type and their limitation period
Longstop for latent defects: 15 years
Claims for breach of contract: 6 years
Most tort claims: 6 years
Claims for personal injury: 3 years
Fatal accident claims: 3 years
Claims for defamation: 3 months
Claims for unfair dismissal: 3 months
For cases in which less than £50,000 is sought, the requirement is for both parties to file their budget with the Directions Questionnaire.
A defendant must respond to a claim within 14 days after deemed service of the Particulars of Claim. The response can be either an admission, the service of a defence, or an acknowledgment of service with an indication that a defence will be filed. The defence must then be filed within 14 days unless the defendant then applies for summary judgment or to strike the claim. In that case, a defence need not be filed until the application is resolved
A party wishing to appeal must apply for permission to appeal within 21 days of the Judge HANDING DOWN JUDGEMENT
The basic limitation period for a negligence (tort) claim without personal injury claims is six years from the date of accrual e.g. date of accident
If the claim form has not yet been served, the claimant can amend it without court permission. The claimant would have to pay to the court any balance of court fee applicable if the amount claimed is higher.
If the Particulars of Claim are not included on the back of the claim form, they may be in a separate written document served along with the claim form or within 14 days following service.
Costs are separately and specifically identified on the claim form. Therefore, costs should not be included when calculating the statement of value
In a debt claim (that is, a claim for a specified sum), the claim value should reflect the amount of the claim in dispute.
For example, if a total claim is for £80,00 but an interim payment has been made of £20,000. The amount remaining in dispute in £60,000. This should be the amount quoted on the claim form as representing the claim value.
Claim is statute-barred if injured person dies after the 3 year limitation period for personal injury has expired
