dispute resolution (week 1-5) Flashcards
what is the overriding objective?
cases are dealt with justly and at a proportionate cost.
what is the general costs rule?
unsuccessful party pays costs of successful party
what is costs in any event?
the party whose favour this order is is awarded their costs (of the interim hearing) regardless of the overall outcome of the case
if costs order is made what is the time frame that it must be paid by?
within 14 days
what is assessed costs?
court needs to be involved with deciding the amount payable (unless parties agree).
either a summary assessment or detailed assessment carried out by the court prior to costs order being made
when is a summary assessment used (costs)?
used in fast-track proceedings and other cases where hearing has lasted no more than one day
when is a detailed assessment appropriate (costs)?
any other case where costs fall to be assessed (not fast track or lasting no more than one day)
what is costs in the case?
the person who wins the case overall will recover their costs from the interim hearing
what is costs reserved?
decision about who pays costs of the interim hearing is put off to a later occasion.
what is C’s or D’s costs in the case?
if that party is successful and receives an order that it should be entitled to its costs at end of trial, it can include costs of interim application.
what is no order as to costs?
each party will bear its own costs for the hearing
what are the advantages of arbitration?
formal process that results in binding decision.
allows parties to choose arbitrator and can be conducted confidentiality
what is expert determination (ADR)?
involves an expert making a binding decision on technical matters but it might not address all aspects of the dispute comprehensively and lacks the formal structure of arbitration
what is med-arb?
the parties initially agree to attempt mediation for a mutually agreeable solution and if unsuccessful proceed to arbitration for a binding decision
when does the limitation period begin for a personal injury claim?
from the date of knowledge - when C knows enough to realise the injury is significant and that it is attributable in whole or part to the act/omission which is alleged. (eg, confirmation of diagnosis and causation)
what is mediation?
confidential process intended to facilitate the resolution of dispute through the medium of impartial third party (mediator) = usually in different rooms (not binding)
what is the difference between expert appraisal and expert determination?
expert appraisal doesnt give a binding decision whereas expert determination does.
what will the court do if a party is not compliant with pre-action protocols?
they will take it into consideration when considering issue of costs or stay proceedings to encourage compliance with pre-action protocols. it can lead to sanctions, especially if it affects the other party and the efficient conduct of the proceedings
if claim is under £100,000 which court should it be issued in?
county court
what circumstances will the court grant an extension of time to serve the claim form (if limitation period has expired eg, 4 month period)?
court will grant an extension if C has taken all reasonable steps to comply and the application was made promptly.
when the particulars of claim are NOT served what the claim form - what is the time frame it must be served after service of the claim form?
must be served within 14 days after service of the claim form
if a doc is served by email (instant method) when are they deemed served?
deemed served on same day if sent before 4:30pm on a business day
when is the claim form deemed serve? (counting time rules)
deemed served on the second business day after the relevant step (eg, leaving doc at DX)
If a doc is served via 1st class post - when are they deemed served?
served on second business day after posting
if claim form is put through a letter box - when is it deemed served?
claim form is deemed to be served on the 2nd business day after posting the claim form through the letter box - as claim form is deemed served on second business day deer completion of the relevant step
when must a D file an acknowledgement of service after service of PARTICULARS OF CLAIM?
within 14 days after service of the particulars of claim
if the D fails to acknowledge service and indicates intention to defend but fails to file defence - what are the consequences?
C can apply for a default judgment
when can the court set aside a default judgment?
if party has a real prospect of successfully defending the claim or if there is some other good reason why judgment should be set aside. (additionally application must be made promptly)
when must the court set aside a default judgment?
when there was a procedural error in obtaining it or the court made an error
if there are 2 Ds and D1files intention to defend but D2 doesnt respond what can C do?
C can apply for a default judgment against D2 if the claim against them can be dealt with separately
what is the overall max amount of time that a D has to defend a claim if the D and C agree an extension of time?
up to 56 days
because has 14 days from being served particulars of claim then if acknowledge gives an extra 14 days so 28 days total and then C and D can agree to extend for further 28 days making a 56 day total
what is the rule on counting time if the end of the period is defined by reference to an event?
the day on which that event occurs is not included
if the specified period is 5 days or less = what are the rules on counting time?
Saturday, Sunday, bank holiday, Christmas Day or good Friday DO NOT COUNT
if a deadline relates to doing an act at the court office and deadline for the day is when the court is shut - when is service deemed as being on time?
the act is treated as on time if done the next ay on which the court office is open
what are the consequences if fail to include statement of truth on a statement of case?
failure to include means doc cannot be used as evidence, if doc contains false info, person signing it may face proceedings for contempt of court
if a party submits a statement of case with formatting errors - what are the potential consequences?
non-compliance requires formal amendments, which can delay proceedings and incur additional costs.
what must particulars of claim include in a personal injury case?
C’s date of birth
details of injury
schedule of past and future expenses and losses
report of any expert medical practitioner relied on by C
what is the purpose of C replying to a defence? (statements of case)
purpose is to respond to any new points raised in the defence that C has not already addressed in the particulars of claim
what are the 3 different ways a D can respond to a statement of case?
1) admit
2) deny (with reasons)
3) require proof
when should a C file their reply to the defence?
should be filed with the directions questionnaire (it is optional and it is where C alleges any facts in answer to the defence that haven’t already been included in the C’s earlier claim)
parties are given at least 14 days notice
what is the set-off consequence if C is unsuccessful and D is successful?
there is no judgment in favour of the C for the set-off to attach to so judgment will simply be entered for D
what is the set-off consequence if C is successful and D is not?
there is no set-off consequence (as it is not triggered) and judgment is simply entered against D
how should a counterclaim be filed?
as it is in the same proceedings as the main claim it should be filed as a combined doc with the defence
if D1 acknowledges service of claim and wants to seek contribution or indemnity from D2 - what should they do?
file a contribution notice with the court and serve it on D2 = a D who has acknowledged service of claim or served defence can seek a contribution or indemnity from an existing party by filing a contribution notice with the court and serving it on the other party
what is an indemnity?
it is the right to recover from a third party the whole amount which he himself if liable to pay
what is a contribution?
a right of someone to recover from a third party all or part of the amount which he himself is liable to pay
if you want to add a claimant to the statements of case- how do you do this?
you need to get the consent of the C and with the consent being filed at court
(if claim form has already been served then need court’s permission to add, remove to substitute a party)
what should a party do if they want to file a claim against a third party who is not current involved?
a party that is already involved can file an additional claim against a third party who is not currently involved.
what is a court likely to consider when deciding whether to grant the C’s application to amend the statement of case/ D’s application to amend defence?
court will consider whether the amendment is necessary to deal with the case justly and at proportionate costs, taking into account the potential prejudice to the D/C and the overriding objective.
if a party objects to providing requested information - what should they do?
if a party objects to providing requested info then they must inform the requesting party of the objections and given reasons within the specified time period (therefore, requesting party is aware of the objection and can decide on the next steps)
if there is an embedment adding a new duty of obligation on part of a D (or possibly C) what should happen/consequence?
it will usually raise a new cause of action so this will be a new claim
if there is an amendment adding additional facts or particulars which clarify a duty or obligation which has already been alleged - what are the consequences?
this will not normally be interpreted as raising a new cause of action
adding or substituting parties post limitation is deemed to be ‘necessary’ only if the court is satisfied that…. (3 things)
1) new party is to be substituted for one that was named in claim form in mistake for the new party; or
2) claim cannot properly be carried on/by/against the original party unless new party is added or substituted; or
3) original party has died or had a bankruptcy order
when do the courts not need a hearing for an interim application?
can happen without a hearing if the parties have agreed on the terms of the order and submit a consent order signed by both parties
what is the procedural outcome for a defendant if a claimant applies for summary judgment before the defendant has served a defence?
the time for the defendant to file a defence is automatically extended until after the summary judgment hearing
what are the grounds for a summary judgment?
no real prospect of succeeding/defending the claim or issue; AND
there is no other compelling reason why the case or issue should be disposed of at trial
who makes an application for interim payment? (C or D?)
claimant
who makes an application for security of costs (C or D?)
defendant
if a party realises they will not meet a deadline - what should they do?
should contact the other party, explain the unforeseen circumstances and ask to agree an extension of time. if the other party refuses then they should immediately apply to the court for an extension of the deadline
what does the court primarily consider when deciding what is the appropriate track for a claim?
the value of the claim dn the complexity of the issues involved.
what is the purpose of a case management conference (CMC)?
to ensure that the real issues between the parties are identified and understood by the parties and the court, and to see if they can be narrowed before trial and set a suitable directions timetable.
(key purpose is to streamline the issued for trial, making sure that both the court and parties are clear on the key matters in dispute and unnecessary issues are discarded)
what happens if significant developments happen where party needs to revise their costs budget - what should they do?
revised budget should be submitted promptly to the court and served on the other parties, along with an explanation of the reasons for the revisions.
what are the Denton principles (deciding whether to grant relief from sanction imposed for failing to file costs budget on time)?
- If breach is neither serious nor significant, then relief should be granted
- If breach is serious or significant, consider why default occurred
- Having considered reason for default, court should then evaluate all circumstances of the case
what is the criteria for a claim to be issued in the small claims track?
£10,000 or less
(special rules for personal injury claims)
what is the criteria for a claim to be issued in the fast track?
up to £25,000
trial max 1 day
oral expert evidence (one per party in 2 fields max = oral evidence)
what is the criteria for a claim to be issued in the intermediate track?
up to £100,000
trial 3 days max
oral expert evidence is 2 per party
(additional factors: claim must be brought by a single claimant against 1 or 2 Ds, or 2 Cs against 1 D)
when issuing a claim in a court - what financial considerations are taken into consideration and which are not to calculate the cost of the claim?
the interest and any contributory negligence are disregarded for the purposes of allocation.
how to issue a claim form? (and how many do you need)
claim form (form N1) issued and sealed:
- one copy for court file
- one for each defendant
- one for claimant’s file
court issue fee
