Dispute Resolution Revision

Question 1

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

Question 2

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

Question 3

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)

Question 4

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

Question 5

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

Question 6

With a few exceptions, non-specified claims for damages are issued out of the County Court Money Claims Centre (‘CCMCC’)

Question 7

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.

Question 8

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

Question 9

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

Question 10

If no specific protocol applies, the practice direction on pre-action conduct and protocols will apply to a claim

Question 11

There is no requirement to address funding in the practice direction on pre-action conduct and protocols

Question 12

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

Question 13

Generally, claims exceeding £100,000 are issued in the High Court

Question 14

The Chancery Division of the High Court is the division that handles equity and trusts

Question 15

Whilst there may be no power to force parties to consider alternative dispute resolution, the court may consider sanctions for not doing so

Question 16

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

Question 17

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

Question 18

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

Question 19

When a party dies, the court may grant an application to substitute the decedent’s personal representative even after the limitation period has expired

Question 20

An application to add a party cannot be granted after the limitation period has expired

Question 21

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.

Question 22

Any documents send by post will be deemed served on the second business day after it was posted

Question 23

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

Question 24

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

Question 25

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

Question 26

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

Question 27

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

Question 28

The pre-trial review case summary should not exceed 500 words

Question 29

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

Question 30

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.

Question 31

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.

Question 32

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.

Question 33

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.

Question 34

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.

Question 35

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

Question 36

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.

Question 37

If the injured party is a minor, time does not start to run on a claim until the minor’s 18th birthday

Question 38

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).

Question 39

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.

Question 40

Attempting alternative dispute resolution is strongly encouraged but not required

Question 41

An arbitral award is enforceable in England and Wales if the court gives judgment in terms of the award

Question 42

In a tort action, when could the limitation begin to run?

Answer 42

1. At the date of the accrual of the cause of action
2. When the victim first sustains damage
3. When the victim first gains knowledge of the facts establishing a claim

Question 43

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?

Answer 43

1. Not longer than 15 years after the alleged negligent act

or

2. 6 years from the date of accrual of the cause of action

or

3. 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

Question 44

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

Question 45

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

Question 46

If a party fails to follow the relevant protocol or the Practice Direction, what are the possible consequences?

Answer 46

1. A stay of proceedings to allow the Practice Direction or a step in the particular protocol to be complied with
2. Ordering the non-compliant party to pay the costs (or part of the costs) of the other party
3. If the non-compliant party is the claimant, restricting interest on the claim

Question 47

What is the threshold for issuing proceedings in the High Court?

Answer 47

More than £50,000 for personal injury claims and £100,000 for other claims

Question 48

When should a claim form include a certificate of suitability?

Answer 48

When the claimant is under age 18 or lacks capacity

Question 49

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?

Answer 49

4 months

Question 50

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?

Answer 50

Yes, unless the defendant has indicated that they do not give permission to be served by DX

Question 51

Can the period for filing a defence be extended merely on the agreement of the parties?

Answer 51

Yes, for an additional 28 days, and the court must be notified of the extension

Question 52

Once made, may an admission be withdrawn?

Answer 52

Yes, but only with permission of the court

Question 53

What must a defendant prove in an application to set aside a default judgment?

Answer 53

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

Question 54

What level of detail is needed in the Particulars of Claim?

Answer 54

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

Question 55

If a claimant fails to respond to an allegation made in the defence, the failure to respond works as an implied denial

Question 56

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

Question 57

A defendant does not need to seek permission from the court to add a counterclaim against the claimant

Question 58

May a party apply to amend a statement of case to add a party?

Answer 58

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

Question 59

What costs are recoverable in a case heard in the small claims track?

Answer 59

An amount not exceeding £750 to cover an expert’s report.

Question 60

How long do the parties have to return the Directions Questionnaire in a multi-track case?

Answer 60

28 days after service of the order, and it is not open to the parties to agree an extension

Question 61

Under the standard fast-track directions, when do the parties make disclosure?

Answer 61

4 weeks from the date of notice of allocation

Question 62

Under the standard fast-track directions, when will the trial be held?

Answer 62

30 weeks from the date of notice of allocation.

Question 63

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.

Question 64

Typically, how much notice must be given to the opposing party of the hearing on an interim application?

Answer 64

3 clear days’ notice (5 if by telephone).

Question 65

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?

Answer 65

At least 14 days

Question 66

A party does no have to show financial need in order to obtain an order for an interim payment

Question 67

What is the minimum timescale for the applicant for interim payment to serve written evidence on the other party?

Answer 67

Not less than 14 days before the hearing.

Question 68

Who may issue an order for a freezing injunction?

Answer 68

Only a High Court Judge

Question 69

To obtain a search or preservation order, there must be a strong prima facie case on the merits of the underlying claim

Question 70

For how long may a solicitor retain documents obtained under a search order, where copies are sought?

Answer 70

The solicitor must give an undertaking to return the documents within 2 days

Question 71

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

Question 72

A court may alter the standard disclosure order as it sees fit, including by dispensing with disclosure altogether

Question 73

Who typically signs the disclosure statement certifying that they have carried out their disclosure duty to the best of their knowledge?

Answer 73

The party only

Question 74

Under the standard fast track directions, how long do the parties have to make disclosure?

Answer 74

28 days from the date of notice of allocation

Question 75

If disclosure would damage the public interest this would be a valid reason not to disclose

Question 76

What is common interest privilege?

Answer 76

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

Question 77

Privilege belongs to the client and can be waived only by the client

Question 78

What is the effect of a solicitor accidentally sending privileged material to the solicitor of the opponent?

Answer 78

The opponent’s solicitor may use the information only with the permission of the court

Question 79

How long do the parties have to ask questions of an expert after receiving the expert’s report?

Answer 79

28 days

Question 80

Typically, when will a pre-trial review hearing take place?

Answer 80

10 weeks before the trial date

Question 81

When must the trial bundles be filed?

Answer 81

Between 3 and 7 days before trial

Question 82

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

Question 83

How long does a party have to request permission to appeal?

Answer 83

21 days from the time the decision is handed down

Question 84

As a general rule, the loser in litigation pays the winner’s costs and disbursements

Question 85

What is the indemnity principle for legal costs?

Answer 85

The winning party may not recover costs greater than what they are liable to pay their solicitor

Question 86

In a multi-track case, when must the parties file a costs budget?

Answer 86

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.

Question 87

In a multi-track case, what is the effect of a party’s failure to file a costs budget?

Answer 87

The party will not be able to recover costs if they prevail

Question 88

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

Question 89

What is an inter-partes costs order?

Answer 89

It simply is an order in which the judge will order one party to pay the costs of the other party

Question 90

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

Question 91

What is a provisional assessment as it relates to costs?

Answer 91

A statement by a District Judge of the amount of costs they would be prepared to sanction based on the winning party’s bill

Question 92

If the losing party is not happy with a provisional assessment, what can they do?

Answer 92

Request a detailed assessment within 21 days of receiving the provisional assessment

Question 93

When must costs be paid?

Answer 93

Within 14 days of issuance of the costs certificate by the court

Question 94

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?

Answer 94

Yes, if the claimant transfers the case to the High Court for *6enforcement**

Question 95

How much notice must a creditor give a debtor before taking control of the debtor’s goods to sell them to satisfy the debt?

Answer 95

At least 7 days

Question 96

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.

Question 97

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.

Question 98

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.

Question 99

It is never appropriate to issue a blanket denial - allegations must be admitted or denied individually

Question 100

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.

Question 101

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.

Question 102

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

Question 103

The claimant need only issue the claim form, not serve it, by the end of the limitation period

Question 104

Non-specified claims for damages are issued out of the County Court Money Claims Centre (‘CCMCC’)

Question 105

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

Question 106

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

Question 107

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.

Question 108

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.

Question 109

A defendant must respond to a claim within 14 days of the deemed date of service of the Particulars of Claim

Question 110

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.

Question 111

A claimant who wishes to make an application for summary judgment may do so as soon as the defendant acknowledges the claim

Question 112

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.

Question 113

There is no requirement within the pre-action conduct and protocols to address funding in the letter of claim

Question 114

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

Question 115

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.

Question 116

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.

Question 117

The Chancery Division of the High Court is the division that handles equity and trusts

Question 118

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.

Question 119

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

Question 120

Litigation privilege will apply so long as it was sent when there was a real likelihood of litigation (a mere possibility is insufficient)

Question 120

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

Question 121

There is no requirement that a claimant has a genuine need for an interim payment

Question 122

An application to substitute a personal representative for a deceased person may be granted after the limitation period has expired

Question 123

If a defendant pays the judgment within 14 days, they can avoid the court recording the judgment in the court register of judgments

Question 124

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.

Question 125

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%

Question 126

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.

Question 127

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

Question 128

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

Question 129

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

Question 130

A Part 36 offer sent by post will be deemed served on the second business day after it was posted

Question 131

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.

Question 132

Contents of a Tomlin Order

Answer 132

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

Question 133

Under the standard cost basis, the court allows proportionate cost and exercises any doubt in favour of the paying party.

Question 134

Queen’s bench division cases

Answer 134

Defamation

Breach of contract

Negligence

Personal injury

Land possession

Non-payment of debts

Question 135

Chancery division

Answer 135

Equity and trusts

Commercial fraud

Tax

Intellectual property

Land

Business disputes

Contentious probate

Regulatory work

Bankruptcy

Professional negligence

Question 136

Claim type and their limitation period

Answer 136

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

Question 137

For cases in which less than £50,000 is sought, the requirement is for both parties to file their budget with the Directions Questionnaire.

Question 138

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

Question 139

A party wishing to appeal must apply for permission to appeal within 21 days of the Judge HANDING DOWN JUDGEMENT

Question 140

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

Question 141

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.

Question 142

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.

Question 143

Costs are separately and specifically identified on the claim form. Therefore, costs should not be included when calculating the statement of value

Question 144

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.

Question 145

Claim is statute-barred if injured person dies after the 3 year limitation period for personal injury has expired