Disputes Flashcards
COSTS: DETAILED ASSESSMENT
What must the paying party do regarding the bill of costs?
Serve any points of dispute re any item within 21 days of commencement
COSTS
Once standard/indemnity basis decided, what factors will be taken into account to decide the amount of costs?
- 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)
COMMENCING PROCEEDINGS
Within what time must the CF be served on D where service will be:
1. Within jurisdiction
2. Outside jurisdiction
- Within jurisdiction = 4 months
- Outside jurisdiction = 6 months
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)
- C writes letter of notification to potential D with brief details so D can notify insurer
- Both parties consider rehabilitation needs and how to address them
PRE-ACTION CONDUCT
What are the consequences of not complying with protocols?
Potentially adverse consequences as to costs/interest or court may stay proceedings until the party complies with the steps required
PRE-ACTION CONDUCT
What are the two options in a PI pre action protocol to measure losses?
- Jointly select a quantum expert (medical expert)
- C submits report and D send WRITTEN questions
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?
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)
PRE ACTION CONSIDERATIONS
What does the date of knowledge mean knowing in the context of the PI?
- Injury was significant (injury = fatal injury in case of FAA);
- Injury was attributable (at least in part) to alleged D
- Identity of D
- 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
What is the consequence of not bringing a claim within the limitation period?
C is barred from claiming damages and D has a full defence
COSTS
What are the 3 most common interim costs orders?
(think devolution)
- Costs in any event
- Costs in the case
- Costs reserved
COSTS
What must parties do for a summary assessment and what will the court do in response?
- 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
COSTS
What must paying party do regarding the bill of costs and by when?
Paying party must serve any points of dispute within 21 days of notice of commencement
COSTS
When is a notice of commencement used?
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
ADR
What are the benefits of arbritration?
- 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
COSTS
Which of the parties must file a costs budget and by when?
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)
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?
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
ADR
What is the legal status of an evaluator’s recommendations in early neutral evaluation?
Advisory and not legally binding
COMMENCING PROCEEDINGS
When is the proceedings started for the purposes of the Limitation Act?
When will the limitation clock be stopped
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
COMMENCING PROCEEDINGS
Where proceedings are commenced against a partnership, against whom specifically should that claim be brought?
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
COMMENCING PROCEEDINGS
When can C(‘s solicitors) serve CF or other SoCs at D’s solicitors’ address?
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
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?
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)
Whose permission, if any, is required to amend PoCs which have been filed with the court but not served on D?
No permission required as PoCs have not been served yet
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?
C pays D’s costs of and caused by the application
Not certain on this one
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?
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
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?
- General damages for pain, suffering and loss of amenity resulting from the breach
- 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
WITNESS/EXPERT EVIDENCE
How long does a party have to put written questions to a joint expert following service of the expert’s report?
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
ENFORCEMENT
When are bankruptcy proceedings the appropriate enforcement method?
As a last resort - bankruptcy proceedings is a drastic measure and typically not the first enforcement method chosen
ENFORCEMENT
What is the appropriate enforcement method where D has a steady income but not many other assets?
Attachment of earnings order
EXPERT EVIDENCE
Under what circumstances is the court most likely to order that evidence be given by a single joint expert?
When the court considers that evidence from a single joint expert is what is reasonably required to resolve the proceedings
