Disputes Flashcards
At what stage can ADR be considered?
Any time
What ADR can take place alongside court proceedings?
Mediation
What is negotiation?
ADR
No third party
What is mediation
ADR
Usually in separate rooms
Independent mediator
What is arbitration?
Formal
Rules/statute
Decision is binding, replaces the court
Why use ADR?
Preserve more positive relationship (probably not arbitration)
Cheaper
Faster (can be)
Private
Larger variety of agreements and compromises (e.g., new contracts)
How do court rules encourage ADR?
Pre-action conduct rules encourage settlement
Budget
DQ
Costs
Stay of proceedings
How does the budget encourage ADR?
You need to put a provisional budget for settlement in the budget form at the costs management stage
What do legal representatives have to do to encourage settlement?
Must tell their clients that they have to consider it
Can the court directly order you to mediate etc?
Yes
What does a consent order do?
Records a settlement agreement and brings the current proceedings to an end on the terms of the consent order
Makes settlement enforceable
What is a Tomlin order?
A consent order that stays proceedings
Records terms that can’t go into proceedings like provisions for future trading contracts
Why get a separate settlement agreement besides a consent/tomlin?
To legally agree things that the court can’t itself order
What is the civil overriding objective?
Deal with case justly and at proportionate cost
What is the result of failure to comply with pre-action protocols?
Sanctions
Costs
Interests
Stay of claim once issued
What cases MUST be issued in county court?
PI less than 50k
Non PI claims up to 100k
What factors should you consider when deciding whether an either-way claim should go to county or high court?
Value
Complexity
Public interest
What happens if you commence proceedings in the wrong court?
Transfer to right court
Costs penalty
When is a claim technically issued?
The date on the issue of claim on the claim form
In what 6 ways can a claim form be served?
Personally
Delivery or leaving at permitted address
First class post
Fax
Electronic method
DX
When can email be used to serve a claim form?
Only if they gave consent for it
What is the time limit for serving a claim form?
Midnight on the calendar day falling 4 months after the date of issue of the claim form
What is the deadline to serve claim form outside jurisdiction?
6mo
When is the claim formed deemed served?
By the relevant step for each method of service
What is the relevant step for personal service?
When you physically leave it with the individual
When/how do you get an extension to serve a claim form?
Court permission
Good reasons
Must apply within the deadline
What is the deadline to serve the particulars after serving the claim form?
14 days of the claim form
Within the 4mo period
What is the deemed date of service for the claim form?
2nd business day after completion of the relevant step
What is the relevant step by post?
Putting it in the post
When is deemed service for other documents?
Post/DX: second day after posting
Instant method:
b4 4:30pm = same business day
otherwise = next business day
When does the defendant need to respond?
Within 14 days of particulars of claim
What responses can the defendant choose from?
Acknowledge service
Defend
Admit
What does acknowledge of service give you?
Extends deadline for filing defence from 14 days to 28
Gives opportunity to apply to dispute jurisdiction
How much longer can the defendant get to serve defence by agreement with the claimant?
Further 28 days
So total 56
What are the counting time rules?
- day period begins doesn’t count
- day period ends is included, unless it is an event
- periods of 5 days or less don’t count weekends/holidays
- court office closed? then done the next day (for actions that require the court)
What is the difference between a specified and unspecified claim?
Specified = total amount is there
Unspecified = court needs to determine the amount
What happens if you admit an unspecified claim?
There will be a quantum hearing
What happens if D doesn’t serve defence or acknowledgment?
You can ask for a judgement in default
Court will decide quantum if needed
What 2 circumstances are there when there is a challenge to a default judgement?
For a judgement wrongly entered
For a judgement correctly entered?
What does the court do for a judgement wrongly entered that is being challenged?
MUST set it aside
What does the court do for a judgement correctly entered that is being challenged?
May set aside if:
D has real prospect of defending the claim
Appears to the court that there is some other good reason why judgement should be set aside
What is the purpose of the statements of case?
To set out the facts that will be relied on
Not evidence
Not argument about law
Are statements of case easily amended?
No
What things are set out in the claim form?
Parties names and addresses
Nature of claim
Remedy sought
Statement of value and justification for High Court (BROADLY: less than 10k, 10-25k, 25k-100k, 100k+)
What is included in the particulars of claim?
Duty, breach, causation, loss
PI: schedule of injuries, past and future expenses and losses
Written agreements (contracts) or oral particulars
Claim for interest
What 3 options are there when responding to particulars paragraph by paragraph?
Admit
Deny
Require proof
If denying a point, what should be included?
Reasons
Different version of events
What does it mean to require proof?
This is for if you are unable to admit or deny because it is something that D does not know about
What happens if you don’t respond to a particular allegation?
You are deemed to admit it
What needs to be included with all statements of case?
File a statement of truth
What happens if you knowingly file a statement of truth for something that isn’t true?
Contempt of court
What options are there for unclear statements of case?
Apply to strike out
Summary judgement
Ask for clarification
Use CPR 18 to request further info
What is the test for whether you can request further information about a statement of case?
Reasonably necessary and proportionate to enable the requesting party to prepare its own case/understand their opponents case
When can a party amend a statement of case without court permission?
Any time before it is served
With written consent of all other parties
When can you add/remove/substitute parties without court permission?
Only if the claim form has not yet been served
What is the test the court will consider when deciding whether to allow add/remove/substitute parties?
Amendment is desirable
What additional requirement is required to change a claimant?
Their consent in writing
What additional claims can be made by the defendant?
Counterclaim v claimant
Counterclaim v claimant and 3rd party
Claim for contribution or indemnity against existing party
Other claims – e.g., blaming a 3rd party
What are the 4 tracks?
Small
Fast
Intermediate
Multi
What value of claims are suitable for small claims?
10K or less
1500 for PI
What value of claim/other considerations make a claim suitable for fast track?
Up to 25k
1 day trial
Oral expert evidence in writing
- 1 per party in 2 fields max (2 total per party, 1 in 2 fields)
What criteria is it for intermediate track?
Up to 100k
3 day max trial
Oral expert evidence, 2 per party
Single claimant v 1 or 2 defendants OR
2 claimants v 1 defendant
What does the court send out after defence is filed?
Notice of proposed allocation
Directions questionnaires
What is contained within the directions questionnaires?
Intended witnesses/experts
Preliminary indications of disclosure
How long they think trial will last
*BASED ON THIS INFO, allocation is decided
When will a CMC be vacated?
If the parties agree their directions, which must be submitted 7 days in advance of the CMC
Court agrees with the directions
What is the purpose of the CMC?
Ensure real issues are identified
Make appropriate directions
What things have to happen prior to the CMC?
Budget - 21 days before
Disclosure report – not less than 14 days before
Draft directions – no later than/at least 7 days b4 trial
Budget discussion report – no later than/at least 7 days b4 trial
What is the ‘product’ of the CCMC?
Directions
Costs management order
In which types of cases is there no obligation to file a disclosure report?
Personal injury
What is the purpose of the disclosure report?
Help the court decide whether standard disclosure should be the order
What is assessing the costs?
When the court restricts the amount of costs that can be recovered at the end of proceedings
Assessing what is reasonable an d proportionate so you’re not surprised at the end
What is the primary purpose of the budget?
Estimate future costs so court can make adequate assessment
What 2 things does the costs management order include?
The extent budgets are agreed
A ordered budget for each stage of proceedings – recovery over which will not be allowed
What is the sanction for not filing a budget on time?
Treated as having filed a budget compromise
Can only recover the applicable court fees
What procedure should you follow if you need to alter your budget?
Revise budget
Try and get other party to agree
Regardless, submit to court
When will the court allow alterations to the budget?
Significant developments in litigation
NOT
- revisions
- correct inaccuracies
At what point can interim applications be made?
At any stage in proceedings
When does the overriding objective dictate that interim applications should be made?
ASAP
