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.
