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SQE 1 - FKL1 > Disputes > Flashcards

Disputes Flashcards

1
Q

At what stage can ADR be considered?

A

Any time

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2
Q

What ADR can take place alongside court proceedings?

A

Mediation

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3
Q

What is negotiation?

A

ADR

No third party

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4
Q

What is mediation

A

ADR

Usually in separate rooms

Independent mediator

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5
Q

What is arbitration?

A

Formal

Rules/statute

Decision is binding, replaces the court

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6
Q

Why use ADR?

A

Preserve more positive relationship (probably not arbitration)

Cheaper

Faster (can be)

Private

Larger variety of agreements and compromises (e.g., new contracts)

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7
Q

How do court rules encourage ADR?

A

Pre-action conduct rules encourage settlement

Budget

DQ

Costs

Stay of proceedings

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8
Q

How does the budget encourage ADR?

A

You need to put a provisional budget for settlement in the budget form at the costs management stage

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9
Q

What do legal representatives have to do to encourage settlement?

A

Must tell their clients that they have to consider it

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10
Q

Can the court directly order you to mediate etc?

A

Yes

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11
Q

What does a consent order do?

A

Records a settlement agreement and brings the current proceedings to an end on the terms of the consent order

Makes settlement enforceable

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12
Q

What is a Tomlin order?

A

A consent order that stays proceedings

Records terms that can’t go into proceedings like provisions for future trading contracts

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13
Q

Why get a separate settlement agreement besides a consent/tomlin?

A

To legally agree things that the court can’t itself order

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14
Q

What is the civil overriding objective?

A

Deal with case justly and at proportionate cost

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15
Q

What is the result of failure to comply with pre-action protocols?

A

Sanctions

Costs

Interests

Stay of claim once issued

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16
Q

What cases MUST be issued in county court?

A

PI less than 50k

Non PI claims up to 100k

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17
Q

What factors should you consider when deciding whether an either-way claim should go to county or high court?

A

Value

Complexity

Public interest

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18
Q

What happens if you commence proceedings in the wrong court?

A

Transfer to right court

Costs penalty

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19
Q

When is a claim technically issued?

A

The date on the issue of claim on the claim form

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20
Q

In what 6 ways can a claim form be served?

A

Personally

Delivery or leaving at permitted address

First class post

Fax

Electronic method

DX

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21
Q

When can email be used to serve a claim form?

A

Only if they gave consent for it

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22
Q

What is the time limit for serving a claim form?

A

Midnight on the calendar day falling 4 months after the date of issue of the claim form

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23
Q

What is the deadline to serve claim form outside jurisdiction?

A

6mo

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24
Q

When is the claim formed deemed served?

A

By the relevant step for each method of service

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25
What is the relevant step for personal service?
When you physically leave it with the individual
26
When/how do you get an extension to serve a claim form?
Court permission Good reasons Must apply within the deadline
27
What is the deadline to serve the particulars after serving the claim form?
14 days of the claim form Within the 4mo period
28
What is the deemed date of service for the claim form?
2nd business day after completion of the relevant step
29
What is the relevant step by post?
Putting it in the post
30
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
31
When does the defendant need to respond?
Within 14 days of particulars of claim
32
What responses can the defendant choose from?
Acknowledge service Defend Admit
33
What does acknowledge of service give you?
Extends deadline for filing defence from 14 days to 28 Gives opportunity to apply to dispute jurisdiction
34
How much longer can the defendant get to serve defence by agreement with the claimant?
Further 28 days So total 56
35
What are the counting time rules?
1. day period begins doesn't count 2. day period ends is included, unless it is an event 3. periods of 5 days or less don't count weekends/holidays 4. court office closed? then done the next day (for actions that require the court)
36
What is the difference between a specified and unspecified claim?
Specified = total amount is there Unspecified = court needs to determine the amount
37
What happens if you admit an unspecified claim?
There will be a quantum hearing
38
What happens if D doesn't serve defence or acknowledgment?
You can ask for a judgement in default Court will decide quantum if needed
39
What 2 circumstances are there when there is a challenge to a default judgement?
For a judgement wrongly entered For a judgement correctly entered?
40
What does the court do for a judgement wrongly entered that is being challenged?
MUST set it aside
41
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
42
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
43
Are statements of case easily amended?
No
44
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+)
45
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
46
What 3 options are there when responding to particulars paragraph by paragraph?
Admit Deny Require proof
47
If denying a point, what should be included?
Reasons Different version of events
48
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
49
What happens if you don't respond to a particular allegation?
You are deemed to admit it
50
What needs to be included with all statements of case?
File a statement of truth
51
What happens if you knowingly file a statement of truth for something that isn't true?
Contempt of court
52
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
53
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
54
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
55
When can you add/remove/substitute parties without court permission?
Only if the claim form has not yet been served
56
What is the test the court will consider when deciding whether to allow add/remove/substitute parties?
Amendment is desirable
57
What additional requirement is required to change a claimant?
Their consent in writing
58
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
59
What are the 4 tracks?
Small Fast Intermediate Multi
60
What value of claims are suitable for small claims?
10K or less 1500 for PI
61
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)
62
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
63
What does the court send out after defence is filed?
Notice of proposed allocation Directions questionnaires
64
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
65
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
66
What is the purpose of the CMC?
Ensure real issues are identified Make appropriate directions
67
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
68
What is the 'product' of the CCMC?
Directions Costs management order
69
In which types of cases is there no obligation to file a disclosure report?
Personal injury
70
What is the purpose of the disclosure report?
Help the court decide whether standard disclosure should be the order
71
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
72
What is the primary purpose of the budget?
Estimate future costs so court can make adequate assessment
73
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
74
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
75
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
76
When will the court allow alterations to the budget?
Significant developments in litigation NOT - revisions - correct inaccuracies
77
At what point can interim applications be made?
At any stage in proceedings
78
When does the overriding objective dictate that interim applications should be made?
ASAP
79

SQE 1 - FKL1 (13 decks)

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