Disputes

Question 1

COSTS: DETAILED ASSESSMENT

What must the paying party do regarding the bill of costs?

Answer 1

Serve any points of dispute re any item within 21 days of commencement

Question 2

COSTS

Once standard/indemnity basis decided, what factors will be taken into account to decide the amount of costs?

Answer 2

• Conduct of parties
• Complexity of matter
• Place where and circumstances in which work was done; and
• Receiving party’s last approved/agreed budget (part of costs management process)

Question 3

COMMENCING PROCEEDINGS

Within what time must the CF be served on D where service will be:
1. Within jurisdiction
2. Outside jurisdiction

Answer 3

1. Within jurisdiction = 4 months
2. Outside jurisdiction = 6 months

Question 4

PRE-ACTION CONSIDERATION AND CONDUCT

Under the pre-action protocol, what are the first steps for C and then both parties to do?

(Before letter of claim)

Answer 4

1. C writes letter of notification to potential D with brief details so D can notify insurer
2. Both parties consider rehabilitation needs and how to address them

Question 5

PRE-ACTION CONDUCT

What are the consequences of not complying with protocols?

Answer 5

Potentially adverse consequences as to costs/interest or court may stay proceedings until the party complies with the steps required

Question 6

PRE-ACTION CONDUCT

What are the two options in a PI pre action protocol to measure losses?

Answer 6

1. Jointly select a quantum expert (medical expert)
2. C submits report and D send WRITTEN questions

Question 7

PRE ACTION CONSIDERATION AND CONDUCT

For neg claims, where facts relevant to cause of action are not known at date of accrual, what is the limitation period extended to?

Answer 7

Later of:
1. 6 years from the date of accrual
2. 3 years from the date C had requisite knowledge/right to bring a claim (date of knowledge)

Question 8

PRE ACTION CONSIDERATIONS

What does the date of knowledge mean knowing in the context of the PI?

Answer 8

1. Injury was significant (injury = fatal injury in case of FAA);
2. Injury was attributable (at least in part) to alleged D
3. Identity of D
4. If alleged wrongdoing committed by someone other than D, identity of that person and facts supporting claim against D

NB all 4 must be present for date of knowledge

Question 9

What is the consequence of not bringing a claim within the limitation period?

Answer 9

C is barred from claiming damages and D has a full defence

Question 10

COSTS

What are the 3 most common interim costs orders?

(think devolution)

Answer 10

1. Costs in any event
2. Costs in the case
3. Costs reserved

Question 11

COSTS

What must parties do for a summary assessment and what will the court do in response?

Answer 11

• Parties must submit statement of costs 24 hours before time fixed for the hearing
• Court will review these and, after hearing short submissions from the parties, will make a decision on costs

Question 12

COSTS

What must paying party do regarding the bill of costs and by when?

Answer 12

Paying party must serve any points of dispute within 21 days of notice of commencement

Question 13

COSTS

When is a notice of commencement used?

Answer 13

Notice of commencement is used to start detailed assessment proceedings - served by the receiving party on the paying party alongside a copy of their bill of costs

Question 14

ADR

What are the benefits of arbritration?

Answer 14

• Privacy
• Easier to enforce in certain jurisdictions
• Can appoint own specialist
• Flexibility in arbritration (can be adjusted to suit needs of parties)
• Faster than litigation

Question 15

COSTS

Which of the parties must file a costs budget and by when?

Answer 15

All parties must serve a costs budget not later than 21 days before the first CMC UNLESS they are litigants in person (ie not legally represented)

Question 16

ADR

Where a contract states that disputes arising from that contract will be determined by arbitration, what is the effect of this clause on issue of civil proceedings? Will it prevent issue of a claim?

Answer 16

It will NOT prevent the issue of civil proceedings

However, where a claim is issued, it will likely be stayed if those proceedings are in breach of an agreement to use ADR

Question 17

ADR

What is the legal status of an evaluator’s recommendations in early neutral evaluation?

Answer 17

Advisory and not legally binding

Question 18

COMMENCING PROCEEDINGS

When is the proceedings started for the purposes of the Limitation Act?

When will the limitation clock be stopped

Answer 18

Proceedings are started when court issues CF at request of C

HOWEVER where CF received in the court office on a date earlier than date issued by the court, claim is ‘brought’ for purposes of LA on that earlier date

Therefore, if limitation runs out between court receiving and issuing unamended CF, proceedings have been commenced within limitation period

Question 19

COMMENCING PROCEEDINGS

Where proceedings are commenced against a partnership, against whom specifically should that claim be brought?

Answer 19

Calmis must be brought against the name under which the partnership carried on business at the time when the cause of action accrued

This applies even where that partnership has subsequently been dissolved

Question 20

COMMENCING PROCEEDINGS

When can C(‘s solicitors) serve CF or other SoCs at D’s solicitors’ address?

Answer 20

ONLY when D gives authority to do so IN WRITING.

Even if authority given over the phone, cannot deliver to solicitors. However, can deliver to D’s registered addres and notify D’s solicitors IN WRITING

Question 21

AMENDMENT OF SOCs

After a second D is added to a claim, when may the first D serve notice of an additional claim against the 2D?

Answer 21

1D may serve notice containing statement of the nature and grounds of their additional appeal within 28 days of service of the 2D’s defence

NB it must be done within this time (any amended PoCs from C after addition of 2D are not relevant to this time limit)

Question 22

Whose permission, if any, is required to amend PoCs which have been filed with the court but not served on D?

Answer 22

No permission required as PoCs have not been served yet

Question 23

COSTS

What is the most likely costs order where D successfully applies to have DJ set aside because they had a good reason for that default?

Answer 23

C pays D’s costs of and caused by the application

Not certain on this one

Question 24

PART 36/APPEALS

Where a P36 offer is made during trial, and the case subsequently continues to appeal, will the original P36 be valid for the purposes of the appeal?

Answer 24

No.

The party making the P36 offer wil have to make a separate offer in respect of the appeal

This allows the costs consequences of rejecting a P36 offer to apply to the appeal proceedings

Question 25

STATEMENTS OF CASE

Where there is a possibility of C developing a serious disease/deterioration of their physical/mental condition, what should their solicitor include a claim for in the POC?

Answer 25

1. General damages for pain, suffering and loss of amenity resulting from the breach
2. Provisional damages - provides compensation for C should the complication associated with their injury materialise in the future

Would require medical evidence to suggest there is a chance of the complication occurring

Question 26

WITNESS/EXPERT EVIDENCE

How long does a party have to put written questions to a joint expert following service of the expert’s report?

Answer 26

C may put WRITTEN questions to the expert within 28 days of service

These questions must be for the purpose only of clarification of the report

Question 27

ENFORCEMENT

When are bankruptcy proceedings the appropriate enforcement method?

Answer 27

As a last resort - bankruptcy proceedings is a drastic measure and typically not the first enforcement method chosen

Question 28

ENFORCEMENT

What is the appropriate enforcement method where D has a steady income but not many other assets?

Answer 28

Attachment of earnings order

Question 29

EXPERT EVIDENCE

Under what circumstances is the court most likely to order that evidence be given by a single joint expert?

Answer 29

When the court considers that evidence from a single joint expert is what is reasonably required to resolve the proceedings