Disputes Flashcards
When can the court permit an amendment to claim form to include a new cause of action after limitation period has expired?
The new claim arises out of the same or substantially the same set of facts as the existing claim
NOTE: D’s concealment of facts is not relevant for permitting an amendment.
Test the court applies when considering granting relief from sanctions
DENTON:
1. Was the breach serious or significant? A minor delay that does not disrupt the timetable is not serious or significant
2. Is there good reason for delay? (only consider if the breach is serious)
NOTE: the court cannot just overlook a breach - must formally apply for relief unless opposing party does not contest the breach
What constitute examples of opinion evidence a witness is entitled to give (i.e. directly perceived)
Includes: facts directly observed with own senses (e.g. speed, level of intoxication based on observed behaviour)
Excludes: statements about D’s state of mind or D’s intention (e.g. D acted in bad faith), statement about a legal issue, statement which suggests a technical cause for the accident
When must C/D serve an application notice on the other party by
**As soon as practicable **after issued by court AND at least 3 clear days before the hearing
Deadline of filing and exchanging cost budget
No later than 21 days before the first CMC
Cost consequences of accepting Part 36 offer within relevant period?
Offeree awarded costs up to the date they accepted the Part 36 offer (DDS)
When is the court likely to order evidence be given by a Single Joint Expert?
SJE is what is reasonably required to resolve the proceedings.
Court will consider:
* proportionate to complexity and value of issue in dispute
* unlikely to be range of opinion
* whether SJE is likely to be able to resolve the issue more quickly and cost-effectively
Summary judgement test
- No real prosepct of sucess; and
- No other compelling reason for trial
When is adjudication required by statute?
Construction dispute
Quick - often a 28 day period is prescribed
When and how can arbitration be appealed?
Judicial Review if:
1. Serious irregularity in conduct of arbitration; or
2. Point of law
How can you ensure an expert’s determination is final and binding?
Include in terms of appointment their decision is final and binding
Status of Early Neutral Evaluation
Advisory and not binding (NOT without prejudice save as to costs)
Responsibilities of mediator once parties reach settlement
Ensure parties understand terms of agreement and they consent to it.
Mediator can advise on how the agreement an be formalised and made enforceable
Test for requistite date of knowledge
The date C knows that:
1. Injury is significant (e.g. Doctor report); and
2. Caused by D; and
3. D’s identity
When does limitation clock stop?
Date CF is received by court (if date of issue is after limitation expires)
What must CF include in a claim for personal injury if claim is started in CC?
- Damages for Pain, Suffering and Loss of Amenity are below £10k
- Whether the amount is more or less than £1k
What county court should a construction dispute be iussed in?
Hearing Centre for Technology and Construction Court Claims
Advice if one party jointly entitled to a remedy does not want to be a claimant?
Can issue proceedings without consent but all persons jointly entitled to a remedy must be parties.
If any person does not agree to be a claimant he must be made a defendant
Effect if D gives solicitors addresss as a potential address for service
C MUST serve CF at business address of solicitor
What steps can be taken against a child claimant in teh absence of a lititgation friend?
No steps (applications, P36 offers will not have effect)
When must a child have a lititgation friend
Child MUST unless court makes an order otherwise
Procedure for Default Judgment
Request DJ: Claim is for a specified sum of money (liquidated damages in breach of contract)
Application for DJ: Claim is against a child OR remedy is for something other than damages for a specified sum (also need written evidence)
NOT available for Part 8 Claim
When is a Tomlin Order more appropriate than a consent order?
- Parties agree terms which go beyond the scope of the dispute
- Want terms to be confidential
Can D deny loss and damage claimed?
No - D can only deny breach and causation.
D can require proof of amount of loss and damage.
How should interest claim be set out on PoC?
If specified claim (setting out exact amount): Exact calculation (rate, period, total amount, daily rate)
if unspecified claim (not setting out exact amount): plead generally under s69 (rate and and period as court thinks fit) - not possible
When can an amendment to particular of claim be made?
Written consent of all parties; or
With court permission
What must an award of provisions damages specify?
- Disease in respect of which a future application may be made
- the period within which such an application may be made
How to make a claim for contribution / indemnity
File and serve contribution notice (D must already be a party)
Limitation period for fatal accident
Starts running from later of date of death or date of knowledge
Service on solicitor
Can only serve on solicitor if D gives authority in writing.
Must serve CF on address in CF. If D has moved, serve on original address and notify D’s solicitor.
Permission for indemnity or contribution
No permission provided:
1. if against original D: Notice is filed adn served with defence
2. if against D added later: notice is filed and served within 28 days after new D filed its defence
Interim Payment
Anytime once AoS has been served
Test:
1. D admitted liability; or
2. C would obtain judgment for a substantial sum from D if claim went to trial
How to obtain a Norwich Pharmacal Order
Serve CF against known D then make application for disclosure against a non-party (Norwich Pharmacal Order).
Test
1. NPO is needed to bring action against UW (no other way to discover their identity)
2. D is more than a mere witness to wrongdoing + likely to be able to identify D
3. NPO is necessary and proportionate
P36 offers and appeals
- P36 offer can be made in respect of appeal hearings
- P36 only has consequences for costs of proceedings in which it is made (not in relation to appeals)
Likely consequence of witness failing to attend trial
- Proceed with trial UNLESS exceptional circumstances
- Cost order against legal team (wasted cost order)
When can parties not agree up to 28 day extension (i.e. must apply to court for deadline extension)
CMC date
Filing Pre-trial checklist
Effect of main claim being struck out on additional claims
Contribution / Indemnity: falls with main claim
Any other: independent to original claim and continues (e.g. claim for damages)
Unless order
Means unless the party completes specified act by specified date, the specified consequence will occur
Likely steps the court will take if a party misses a deadline
- Issue an unless order
- if party fails to comply, strike out the case.
Amendments to statements of case after service
Consent of ALL parties; or
Court Permission
C adding a new party
New D: Court Permission + Amend SoCs
New C = C’s consent + Court Permission + Amend SoCs
Test: Addition is desirable (early in proceedings / increased complexity justifiable?)
Denial and Requiring Proof
Deny - must give reasons
Require Proof - appropraite if have no knowledge of facts. Do not have to give reasons.
Responding to letter of claim - meaning of reaonable time
14 days = simple claim
3 months = complex claim
CFA - What sum can sol charge for fees?
fee + success fee (% of fee)
Time to comply with judgment
pay within 14 days unless court stayed proceedings or judgment (application for stay is insufficient)
Disregards for value of claim - high court or county court
Disregard interest, costs, contrib neg, counterclaim, set off
test for whether permission to appeal will be granted
Grounds for appeal
TEST: real prospect of success; or
some other compelling reason
GROUNDS: wrong or unjust due to seriosu procedural error
How to appoint a litigation friend
File certificate of suitability
If no LF, all C can do it serve claim form or apply for a court order to appoint a LF
Value of claim
Damages (including VAT) NOT interest, costs, set off, contrib neg, counter claim etc.
Unless order application procedure
can be dealt with without notice interim hearing
What should OS do if OS fails to comply with unless order?
file a request for judgment stating the right to enter judgment has arisen as the order has not been complied with (not automatic)
Security for costs test
- Just to make order; and
- condition is satisfied;
- C is in non-hague country
- C is company + evidence unable to pay
- C is moving assets away
When should an interim injunction without notice be sought?
only if it is extremely urgent. otherwise, with notice procedure should be used.
Interim injunction test
- Just and equitable
- serious question to be tried (substantive cause of action and the case is not obviously hopeless)
- damages inadequate
- balance of convenience (only if damages inadequate for both parties)
Likely order if claimant is awarded less in damages than given in interim payment
repay any overpayment + interest on overpaid amount
disclosure statement
It sets out the extent of the searches made and certifies an understanding of the duty to disclose documents and that the duty has been carried out to the best of the party’s knowledge.
Who should sign disclosure statement
NOT solicitor or on behlaf of company.
D or person who complied all the documents (e.g. facilities manager)
When will court permit witness to give oral evidence at trial not in witness statement
Good reason (e.g new evidence has recently come to light)
COnsequences if expert fails to answer questions?
may not be permitted to rely on expert adn may not recover costs for expert
Children v protected party
Child is differnt to protected party.
PPs always need a litigation friend. Child may not need one.
Discontinuance where an interim payment has been made
Possible with D’s consent or court permission
settlement and protected parties _ children
if C is a protected party or child, settlement must be first approved by the court.
When can fresh evidence be introduced on appeal?
- the evidence could not have been obtained with reasonable diligence for use at trial
- , it would probably have an important influence on the result of the case and
- is apparently credible.
Challenging authenticity of disclosed document
serve notice within 7 days of disclosure or the latest date for serving wtiness statements
