Dispute Resolution - Written Skills (FLK) Flashcards
What must a party do if they do not engage in ADR proposed by another party?
Serve a witness statement giving reasons within 21 days of the proposal
What are the consequences of not engaging in ADR?
- Cost penalties
- Factors considered include the nature of the dispute, merits of the case, and delay effects
When is mediation not appropriate?
- A ruling on a point of law is needed
- An injunction is required
- Involves allegations of fraud or disreputable conduct
How is a mediation agreement enforced?
It is not automatically binding; if parties agree to terms, it forms a contract
How can an arbitration award be enforced?
By applying to the High Court as if it were a court judgment
What is the limitation period for contract claims?
6 years from the date of breach
What is the limitation period for personal injury claims?
3 years from the date of injury
Limitation period for tort claims
Tort: 6 years from the date tort is committed
Negligence (Where the damage is latent (hidden) : 6 years from the date of cause of action and 3 years from the date of knowledge of damage. Whichever is later but no later than 15 years.
What happens if a party misses the limitation period?
The defendant will have a technical defence, and the claim may be statute barred
What are the consequences of failing to follow PDPAC terms?
- Costs penalties
- Deprivation of interest on damages
- Interest payment by a defendant at a rate of up to 10% per annum above the base rate
Which claims must be started at County Court
- If the value of the claim is £100,000 or less, it must be started in the County Court.
- A claim for damages in respect of personal injuries for £50,000 or less.
- specified claims, namely those for a specific sum of money (debt claims); or
- unspecified claims for damages, where the amount in dispute will need to be quantified by the cour
What types of claims must be started in the High Court?
- Claims exceeding £100,000
- Personal injury claims of £50,000 or more
- Complex claims or those important to the public
What documents are required to commence proceedings?
- Claim form (form N1)
- Particulars of claim
- Required annexed documents
How must specified claims be stated in the claim form
For specified (debt) claims: the precise figure should be calculated including the interest that has accrued
How must unspecified claims be stated in the claim form
High Court
- ‘The Claimant expects to recover more than £100,000’. This provides confirmation that the matter has been issued in the correct court.
- Where damages are claimed for personal injury, the relevant figure is £50,000.
County court
* whether they expect to recover:
∘ not more than £10,000; or
∘ more than £10,000 but not more than £25,000; or
∘ more than £25,000 but not more than £100,000; or
∘ more than £100,000;
What is the time limit for serving the claim form?
Must be served within four months from the date it was issued
Time limits for service out of the jurisdiction
Instead of four months, the document must be served on the other parties within six months of being issued.
How is a claim form deemed served?
On the second business day after the step required has occurred
Deemed Service of forms other than claim form
Everything other than First class post or DX
- If served before 4:30pm on a business day, on that day
- If not, on the next business day.
First class post or DX
- The second day after it was posted if that day is a business day.
- If not, on the next business day.
What must the defendant do upon receiving particulars of claim?
Respond within 14 days of deemed service
1) Admit
2) File an acknowledgement of service (must be followed by a defence within 28 days of the deemed service date of the particulars of claim), or
3) file a full defence.
What is required for adding, substituting or removing a party?
Consent is required if the claim form has been served
Grounds for adding, substituting or removing a party? (application made within the limitation period)
- Desirable to add a party to resolve matters;
- To remove a party
- to substitute a party where the existing party’s interest or liability has passed to them
Grounds for adding, substituting or removing a party? (application made outside the limitation period)
- May only be done if the limitation period was current when proceedings started AND
- Party named by mistake
- Party died/bankrupt and their interest has passed
- claim cannot properly be carried on without the new party
What is a Tomlin order?
Used if parties want confidentiality.
An order that stays the claim on agreed terms set out in a schedule or separately
What must a defendant do to dispute the court’s jurisdiction?
State it on the acknowledgment of service, The defendant then has 14 days after filing the acknowledgment of service form to make a challenge, failing which they will be treated as having submitted to the jurisdiction.
What is an additional claim?
Claims made by a defendant for contribution or indemnity against any person
When is permission required from the court for a counterclaim?
Permission is not required from the court unless the defence has already been filed.
When can amendments be made to a statement of case?
Amendments may be made any time before service of the statements of case or with consent after service.
What are the circumstances under which a court may allow an amendment after the limitation period?
The court may allow an amendment to add or substitute a new claim, correct a mistake in the name of a party, or alter the capacity in which a party claims.
What must a party do when requesting further information under CPR Part 18 ?
1) Serve a written request on the other party, allowing a reasonable time for the response.
2) A request should be concise and strictly confined to matters that are reasonably necessary and proportionate to enable the applicant to prepare their own case or to understand the case they have to answer.
What must be attached to an application notice for interim applications?
A draft of the order sought must be attached to assist the judge.
What is the notice period for serving an application notice?
The application notice must be served on the opponent at least three clear days before the court hearing.
What is the procedure for summary judgment application ?
- The applicant applies with Form N244 and (usually) a witness statement in support.
- The respondent must:
∘ be given at least 14 days’ notice of the hearing date; and
∘ file and serve any written evidence at least seven days before the hearing.
What is the procedure for an interim payment application ?
1) An application notice for an interim payment must be served at least 14 days before the hearing date.
2) Evidence must be provided and should set out:
* the amount requested and what it will be used for;
* the amount of the sum of money that is likely to be awarded at final judgment; and
* the reasons for believing that the grounds required by the CPR are satisfied.
What is the consequence of failing to file the directions questionnaire?
In money claims, the statement of case may be automatically struck out if not filed within seven days.
How are claims allocated to tracks ?
Small claims track: Claims of £10,000 or less.
Fast track: The fast track is for claims between £10,001 and £25,000 inclusive.
Intermediate track: Less complex claims valued between £25,001 and £100,000
Multi-track: Most complex claims generally with a value more than £100,000.
Disclosure on each tracks ?
Small Claims: Each party shall, at least 14 days before the date of the final hearing, file and serve on every other party copies of all documents on which they intend to rely at that hearing.
Fast and Intermediate:
* disclosure on an issue-by-issue basis;
* standard disclosure.
Multi-track: standard disclosure.
When can a party withhold inspection of documents ?
If it comes within the definition of privilege
Privilege
- Legal Professional Privilege
- Legal Advice Privilege
- Litigation Privilege
What is the standard and burden of proof in civil cases?
Burden is on the claimant
The standard of proof is on the balance of probabilities, meaning greater than 50% certainty.
What is the exception to the burden of proof in civil proceedings?
When the defendant has been convicted of a relevant criminal offence.
This reverses the burden of proof.
What is the general rule about opinion evidence in court?
Opinion evidence is not admissible as witnesses should only provide evidence of relevant facts.
When can an opinion evidence be admissible?
If it conveys relevant facts personally perceived by them under.
Admissibility of hearsay evidence and procedure to admit hearsay evidence
Hearsay evidence is admissible in civil proceedings
When serving the witness statement, it is essential that the party
intending to rely on the hearsay evidence serves a hearsay notice, which should be served at the same time as the witness statement.
What happens if a party does not comply with the hearsay notice requirements ?
The hearsay is still admissible but the failure may be taken into account when assessing the weight to be given to it, or when
making a costs order at the end of the trial.
Factors that an opponent point out to attack the weight attached to hearsay evidence
(a) Whether it would have been reasonable and practicable for the party adducing the evidence to have called the person who made the original statement as a witness.
(b) Whether the original statement was made contemporaneously with the events in question?
(c) Whether the evidence involves multiple hearsay
(d) Whether any person involved had any motive to conceal or misrepresent matters
(e) Whether the original statement was edited, or was made in collaboration with someone else
(f) Whether the circumstances suggest an attempt to prevent proper evaluation of the weight of the evidence
What is required for expert evidence ?
No party may call an expert without obtaining permission
What are the duties of expert witnesses ?
Duty to court
- The duty is to assist the court by providing objective, unbiased opinions on matters within their own expertise.
- The duty to the court overrides any obligation to the person who instructed them.
- The duty is not to assume the role of an advocate.
Duty to client
- They will be subject to the usual implied term to exercise reasonable care and skill under s 13 of the Supply of Goods and Services Act 1982 when considering and drafting their report.
What is the purpose of a witness summons?
To require a witness to attend court to give evidence and/or produce documents.
When must a witness summons be served before the court date?
At least seven days before the date the witness is required to attend court.
Timing of Pre-trial checklists (listing questionnaires) and reviews
The completed pre-trial checklist must be filed at court no later than 8 weeks before the trial date.
Role of Pre-trial checklists (listing questionnaires) and reviews
The judge will review the checklists to decide whether further directions are needed and whether a review hearing is necessary before the trial.
Failure to comply with Pre-trial checklists (listing questionnaires) and reviews
Neither party comply: The court will order that unless a completed
checklist is filed within seven days, the claim, defence and counterclaim will be struck out;
Only one party complies: The court will fix a hearing to ensure the case is ready for the trial.
Procedure for appeals
1) Apply for permission to appeal
2) If permission granted then proceed to appeal
Grounds of appeal
The appellant will have to persuade the appeal court that the decision of the lower court was either:
(a) wrong (as to law, interpretation of facts or exercise of discretion); or
(b) unjust because of a serious procedural irregularity in the proceedings of the lower court.
Permission to appeal grounds
First appeal – the appeal has:
- a real prospect of success;
or - there is some other compelling reason why it
should be heard.
Second appeal – as above
and:
* it raises an important point of principle or practice.
What is a leapfrog appeal?
An appeal heard by a higher appellate court than usual, such as from a County or High Court directly to the Court of Appeal.
How are costs usually determined in each ground
- Small claims track: legal costs are not recoverable and so the costs payable will only relate to disbursements.
- Fast and intermediate tracks: fixed costs apply.
- Multi-track: a detailed assessment of the costs will be carried out.
How are costs assessed on the standard basis
1) Is the item reasonably incurred?
2) Is the item reasonable in amount?
3) Is the total figure for each phase proportionate
*Any doubt is resolved in favour of the paying party
How are costs assessed on the indemnity basis
1) Is the item reasonably incurred?
2) Is the item reasonable in amount?
*Any doubt is resolved in favour of the receiving party
What is required for a non-party costs order to be granted?
The non-party must be the real party interested in the litigation or responsible for bringing the proceedings.
What is the general rule regarding the time for complying with a judgment or order?
14 days from the date of the judgment or order.
What formalities must a Part 36 offer comply with?
It must be:
* in writing
* clearly made pursuant to Part 36
* specify a relevant period of not less than 21 days
* state if it relates to the whole or part of the claim
DEFENDANT/CLAIMANT SERVES PART 36 OFFER ON CLAIMANT - Acceptance within relevant period
D pays C’s costs up to the date of acceptance on the standard basis
for cases on the multi-track;
and fixed costs for those on the fast and intermediate tracks
DEFENDANT SERVES PART 36 OFFER ON CLAIMANT - ‘Late’ acceptance (outside relevant period)
- D pays C’s costs up to the date of expiry of the relevant period; and then
- C pays D’s costs up to the date of acceptance.
= Fixed costs apply to the relevant stages on the fast and intermediate tracks; and standard costs on the multi-track
Alternatively, it can be changed by serving a notice of change.
CLAIMANT SERVES PART 36 OFFER ON CLAIMANT - ‘Late’ acceptance (outside relevant period)
- D pays C’s costs up to the date of acceptance on the standard basis
for cases on the multi-track; and - fixed costs for those on the fast and intermediate tracks
CLAIMANT WINS AT TRIAL AND EQUALS OR
BEATS THEIR OWN PART 36 OFFER
C is awarded:
* damages plus
* for damages up to £500,000 an additional 10% and
* for damages of between £500,000 and £1 million an additional 5%
* up to a maximum of £75,000
+
Up to Day 21:
* interest on the damages from the date of loss as claimed in the particulars of claim
* costs on the standard basis (multi-track) or fixed costs (fast and intermediate tracks) from the date C incurred them
+
From Day 22 to judgment:
* interest on the damages at a maximum of 10% above base rate
* costs on an indemnity basis (multi-track) or with a 35% uplift on the claimant’s fixed recoverable costs (fast and intermediate tracks)
* interest on the costs at a maximum of 10% above base rate
Interest is typically at 1% or 2% above base rate.
CLAIMANT WINS AT TRIAL BUT DOES NOT
BEAT THE DEFENDANT’S PART 36 OFFER
C is awarded:
* damages and
* interest from the date of loss as claimed in
the particulars of claim
+
Up to Day 21:
* D pays C’s costs on the standard basis
(multi-track) or fixed costs (fast and
intermediate tracks) from the date when
C incurred them
+
From Day 22 to judgment:
* C pays D’s costs on the standard basis (multi-track) or fixed
costs (fast and intermediate tracks) and
* interest on those costs usually at 1% or 2% above base rate
CLAIMANT LOSES AT TRIAL - PART 36 OFFER
The general rule as to costs would apply and the claimant, as the losing party, would be ordered to pay the winner’s (the defendant’s) costs.
However, to penalise the claimant for not accepting the defendant’s Part 36 offer, they would also be ordered to pay interest on those costs from Day 22 until judgment – usually at 1% or 2% above base rate.
What may be seized under enforcement methods?
Usual contents of a home or business premises, including:
* motor cars
* computers
* banknotes
* boats
* securities
Less common items may also be seized.
What is exempt from seizure under the necessary items exemption?
Items such as:
* clothes
* bedding
* furniture
* household equipment
* work tools
* computers
* vehicles
*These must meet basic needs and have a maximum aggregate value of £1,350.
What limits do HCEOs and enforcement officers have?
They cannot force entry into a debtor’s home but can use reasonable force to break into business premises
What is a charging order?
A court order that can be made on land or securities, allowing a creditor to secure a debt
What is a third party debt order?
An order requiring a third party to pay the creditor sufficient money to satisfy the judgment debt.
For example: bank or building accounts that are in credit; and
trade debts due to a business.
*This applies to debts solely owned by the judgment debtor not joint accounts.
What is an attachment of earnings order?
An order that compels the debtor’s employer to make deductions from earnings and pay into court
What to do if debtor changes employment ?
Another application for an attachment of earnings order should be applied for
