dispute resolution (week 6-10)

Question 1

what are the 3 exceptions to when a party doesnt have a right to inspect a disclosed document?

Answer 1

1) no longer in their control
2) disproportionate
3) right/duty to withhold inspection (eg, privilege)

Question 2

what is legal advice privilege?

Answer 2

applies between lawyer and their client - also includes when there is repetition of legal advice internally

Question 3

what is litigation privilege?

Answer 3

doc that is confidential which passes between lawyer and his client or between one of them and a 3rd party, where dominant purpose in creating doc is to obtain legal advice, evidence or information for use in conduct of litigation which was at the time reasonably in prospect.

Question 4

what is without prejudice privilege?

Answer 4

doc that’s purpose is a genuine attempt to settle a dispute

Question 5

what types of info can be redacted (there are 3)?

Answer 5

1) confidential
2) commercially sensitive
3) irrelevant

Question 6

Specific disclosure is an order that a party must do one or more of the following things: (there are 3)

Answer 6

 Disclose docs or classes of docs specified in the order
 Carry out a search to the extent stated in the order
 Disclose any docs located as a result of that search

Question 7

what s a Norwich pharmacal order?

Answer 7

when court proceedings cannot be commenced because the identity of a D is unknown. it therefore orders the respondent to disclose info allowing the C to sue the right person

Question 8

what factors are taken into consideration when determining if a reasonable search for docs in standard disclosure has occurred?

Answer 8

number of docs involved, nature and complexity of proceedings, ease and expense of retrieval and significance of any doc likely to be located

Question 9

what is the general rule on opinion evidence?

Answer 9

it is not admissible unless it falls under the ‘perceived facts’ exception

Question 10

can a court admit the criminal conviction of a D to prove they committed the offence?

Answer 10

yes they can, provided that it is relevant to an issue in the proceedings. however, the conviction doesnt conclusively determine the issue so the D can challenge the conviction’s relevance or accuracy on a balance of probabilities

Question 11

what is the time frame that a party can submit questions (clarifying questions) to an expert?

Answer 11

a party may put written questions to another party’s expert, or a single joint expert, for the purpose of clarifying the report. These questions must be submitted within 28 days of service of the expert’s report, and a copy must be sent to the other party

Question 12

when is an affidavit used in civil cases?

Answer 12

used in an application for a search order or a freezing injunction and in any other situation where a rule, order or practice direction requires it

Question 13

if evidence is in a witness statement of a person who gives oral evidence at trial - do they need to provide notice of intention for hearsay evidence?

Answer 13

no they do not need formal notice - notice is deemed served when witness statements are served on the other party

Question 14

if the evidence in a witness statement of a person who is not giving oral evidence at trial - does a notice of intention to rely on hearsay evidence need to be given?

Answer 14

no, but other party must be informed that the witness will not be giving evidence at trial with reasons

Question 15

if notice is not given when it should have been for hearsay evidence - what are the consequences?

Answer 15

evidence is still admissible, but the weight the court attaches to it is likely to be less and the addending party may be penalised in costs

Question 16

what are the 4 things a party who receives hearsay notice can do?

Answer 16

1) request particulars of hearsay
2) call for cross-examination of the witness
3) challenge the weight of the hearsay
4) attack credibility of the evidence

Question 17

who does an expert owe a duty to?

Answer 17

duty is to the court

Question 18

what is hot-tubbing expert evidence?

Answer 18

when some or all of the evidence of experts from similar disciplines is given concurrently. in relation to an issue (judge will ask experts, in turn, for their views issues on the agenda)

Question 19

when is expert evidence no longer privileged?

Answer 19

up until the point it is served and exchanged

Question 20

how long is the relevant period for a part 36 offer?

Answer 20

at least 21 days from the date of the offer

Question 21

can an offeror withdraw a part 36 offer before/within the relevant period?

Answer 21

no they cannot withdraw or change the terms of the offer within this period without the court’s permission

Question 22

what is a Tomlin order?

Answer 22

specifically designed for settlements that require confidentiality and include terms that go beyond what the court would generally order. main body of the order is public but the detailed terms are included in a confidential agreement

Question 23

what is the effect of a consent order that includes a waiver of future claims related to the same issue?

Answer 23

it prevents client from bringing new lawsuits related to the same issue covered by the consent order. the waiver is a binding agreement and upheld by the court.

Question 24

what is a part 36 offer?

Answer 24

it is an offer that a party makes at any stage as to the costs

Question 25

what happens if D’s part 36 offer was not accepted and C fails to obtain a judgment more advantageous?

Answer 25

D is entitled to:
- costs from date on which the relevant period expired; and
- interests on those costs

Question 26

what happens if C’s part 36 offer was not accepted and they did not get judgement against D that is as advantageous?

Answer 26

Court must, unless it considers it unjust to do so, order that the C so entitled to:
o Interest (rate not exceeding 10% above base rate) from date of expiration of relevant period
o Costs on the indemnity basis from date on which the relevant period expires
o Interest on those costs at a rate not exceeding 10% above the base rate; and additional cost

Question 27

what is discontinuance and who can do it?

Answer 27

only C can discontinue a claim (brings a claim to an end - either all or part of a claim). C is normally required to pay opponent’s costs in relation to any claim discontinued. must file a notice to court and serve copy on every party

Question 28

when does discontinuance take effect?

Answer 28

from the date of service

Question 29

what is negotiation?

Answer 29

communication process aimed at reaching agreement between parties.

Question 30

what is mediation?

Answer 30

impartial mediator and goes between parties to rely and reach agreement (just encourage parties to reach settlement)

Question 31

what is arbitration?

Answer 31

used instead of court proceedings (impartial adjudicator has power to make decision)

Question 32

what is conciliation?

Answer 32

third party who is facilitative in helping reach a decision.

Question 33

who bears the burden of proof when deciding costs on a party refusing to engage in ADR?

Answer 33

The unsuccessful party bears the burden of proof to show the court why it should depart from the general rules on costs to deprive a successful party of some or all of its costs on grounds it refused to agree to ADR

Question 34

what is a charging order?

Answer 34

it secures debt against a party’s property - ensures that when the property is sold the debt will be paid from the proceeds

Question 35

if a party has an attachment of earnings and their financial circumstances change - how can they vary it?

Answer 35

apply to county court to vary attachment of earnings order if their financial circumstances change

Question 36

what is a summary assessment?

Answer 36

after trial or hearing that lasts up to one day. Judge hears from the parties and uses Guideline Rates to set the hourly rate for the solicitor. Result is a rough estimate of costs that must be paid within 14 days

Question 37

what is a detailed assessment?

Answer 37

procedure used when client challenges their bill or at the end of the case that lasts more than one day

Question 38

how many days does a party have to challenge a detailed assessment?

Answer 38

Detailed bill is drawn up and served on other party, who has 21 days to raise any challenges.

Question 39

what is the time frame that a party must obtain permission to appeal a decision?

Answer 39

needs to be done within 21 days of the lower court’s decision

Question 40

what is a third party debt order?

Answer 40

third party bypasses the person who needs to make payment, and the third party pays it directly to the court. Requires third party to search for and disclose information to court and judgment creditor

Question 41

when does The Hague convention apply?

Answer 41

Only applies when parties have chosen a contracting state as the court will have jurisdiction (UK, EU member states, Mexico, Singapore and Montenegro) and the clause gives exclusive jurisdiction.

Question 42

under the common law in a contract claim how does permission be obtained to have jurisdiction granted to England and Wales?

Answer 42

person domiciled in jurisdiction. If contract: contract made in jurisdiction; or governed by English law; or contains term stating court has jurisdiction to determine

Question 43

under common law for a tort claim how does a person obtain permission to have jurisdiction granted to England and Wales?

Answer 43

damage was sustained in jurisdiction; or damage which is or will be sustained results from act committed or likely to be committed in jurisdiction.

Question 44

what are the time frames for serving claim form within jurisdiction and outside jurisdiction?

Answer 44

serve claim form within jurisdiction = 4 months
serve claim form outside jurisdiction = 6 months

Question 45

if a party wants to dispute a court’s jurisdiction - what should they do? (procedurally and what is the time frame)

Answer 45

• D must file an acknowledgement of service (tick the box) and D then must apply within 14 days after filing acknowledgment of service, disputing court’s jurisdiction and supported by evidence.
• D must NOT take any steps to engage with proceedings eg, do not give a defence

Question 46

what are the 3 rules under Rome 1 for contracts?

Answer 46

1. parties are free to choose which country laws to apply to their dispute
2. In absence of choice then specific provisions outline which jurisdiction to use
   - sale of goods = seller’s habitual residence
   - provisions of services = service provider’s habitual residence
   - contract relating to land = where land is situated
   - distribution contract = distributor’s habitual residence
3. if not one of these then the applicable law is that of the country where the characteristic performance (party doing something) has its habitual residence

Question 47

what are the 3 rules outlined in Rome 2 for tort claims?

Answer 47

1. parties are free to choose which country laws to apply to their dispute
2. Do the parties reside in the same country?
3. If no, the country where the damage occurs (not the event). For personal injury and damage to property this is the country where injury was sustained or where property was damaged
4. Tort manifestly more closely connected with another country

Question 48

what are the consequences if both parties make a part 36 offer and neither accept and neither has done better than offered?

Answer 48

general rule for costs applies = loser pays the winner’s costs

Question 49

if your client doesnt want to disclose a doc = what should you do?

Answer 49

if you cannot get them to agree to disclose the doc then you need to cease to act as you cannot notify court as that breaches confidentiality and cannot be complicit in misleading the court

Question 50

can you show the judge a part 36 offer?

Answer 50

no, it is ‘without prejudice except as to costs’ this means that it cannot be shown to the judge until the case has ceased therefore, cannot see it until deciding on costs

Question 51

is the court’s permission required to instruct an expert witness?

Answer 51

no it is not needed BUT it is needed if you want to rely on that expert witness’s written report or call them to court

Question 52

does a doc that the other party wrote to you and has a copy of fall under standard disclosure?

Answer 52

Yes, still falls under standard disclosure = doesnt matter that they have a copy and they wrote it themselves.