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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
Q

What is the relevant step for personal service?

A

When you physically leave it with the individual

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26
Q

When/how do you get an extension to serve a claim form?

A

Court permission

Good reasons

Must apply within the deadline

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27
Q

What is the deadline to serve the particulars after serving the claim form?

A

14 days of the claim form

Within the 4mo period

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28
Q

What is the deemed date of service for the claim form?

A

2nd business day after completion of the relevant step

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29
Q

What is the relevant step by post?

A

Putting it in the post

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30
Q

When is deemed service for other documents?

A

Post/DX: second day after posting

Instant method:
b4 4:30pm = same business day

otherwise = next business day

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31
Q

When does the defendant need to respond?

A

Within 14 days of particulars of claim

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32
Q

What responses can the defendant choose from?

A

Acknowledge service

Defend

Admit

33
Q

What does acknowledge of service give you?

A

Extends deadline for filing defence from 14 days to 28

Gives opportunity to apply to dispute jurisdiction

34
Q

How much longer can the defendant get to serve defence by agreement with the claimant?

A

Further 28 days

So total 56

35
Q

What are the counting time rules?

A
  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
Q

What is the difference between a specified and unspecified claim?

A

Specified = total amount is there

Unspecified = court needs to determine the amount

37
Q

What happens if you admit an unspecified claim?

A

There will be a quantum hearing

38
Q

What happens if D doesn’t serve defence or acknowledgment?

A

You can ask for a judgement in default

Court will decide quantum if needed

39
Q

What 2 circumstances are there when there is a challenge to a default judgement?

A

For a judgement wrongly entered

For a judgement correctly entered?

40
Q

What does the court do for a judgement wrongly entered that is being challenged?

A

MUST set it aside

41
Q

What does the court do for a judgement correctly entered that is being challenged?

A

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
Q

What is the purpose of the statements of case?

A

To set out the facts that will be relied on

Not evidence

Not argument about law

43
Q

Are statements of case easily amended?

A

No

44
Q

What things are set out in the claim form?

A

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
Q

What is included in the particulars of claim?

A

Duty, breach, causation, loss

PI: schedule of injuries, past and future expenses and losses

Written agreements (contracts) or oral particulars

Claim for interest

46
Q

What 3 options are there when responding to particulars paragraph by paragraph?

A

Admit

Deny

Require proof

47
Q

If denying a point, what should be included?

A

Reasons

Different version of events

48
Q

What does it mean to require proof?

A

This is for if you are unable to admit or deny because it is something that D does not know about

49
Q

What happens if you don’t respond to a particular allegation?

A

You are deemed to admit it

50
Q

What needs to be included with all statements of case?

A

File a statement of truth

51
Q

What happens if you knowingly file a statement of truth for something that isn’t true?

A

Contempt of court

52
Q

What options are there for unclear statements of case?

A

Apply to strike out

Summary judgement

Ask for clarification

Use CPR 18 to request further info

53
Q

What is the test for whether you can request further information about a statement of case?

A

Reasonably necessary and proportionate to enable the requesting party to prepare its own case/understand their opponents case

54
Q

When can a party amend a statement of case without court permission?

A

Any time before it is served

With written consent of all other parties

55
Q

When can you add/remove/substitute parties without court permission?

A

Only if the claim form has not yet been served

56
Q

What is the test the court will consider when deciding whether to allow add/remove/substitute parties?

A

Amendment is desirable

57
Q

What additional requirement is required to change a claimant?

A

Their consent in writing

58
Q

What additional claims can be made by the defendant?

A

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
Q

What are the 4 tracks?

A

Small

Fast

Intermediate

Multi

60
Q

What value of claims are suitable for small claims?

A

10K or less

1500 for PI

61
Q

What value of claim/other considerations make a claim suitable for fast track?

A

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
Q

What criteria is it for intermediate track?

A

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
Q

What does the court send out after defence is filed?

A

Notice of proposed allocation

Directions questionnaires

64
Q

What is contained within the directions questionnaires?

A

Intended witnesses/experts

Preliminary indications of disclosure

How long they think trial will last

*BASED ON THIS INFO, allocation is decided

65
Q

When will a CMC be vacated?

A

If the parties agree their directions, which must be submitted 7 days in advance of the CMC

Court agrees with the directions

66
Q

What is the purpose of the CMC?

A

Ensure real issues are identified

Make appropriate directions

67
Q

What things have to happen prior to the CMC?

A

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
Q

What is the ‘product’ of the CCMC?

A

Directions

Costs management order

69
Q

In which types of cases is there no obligation to file a disclosure report?

A

Personal injury

70
Q

What is the purpose of the disclosure report?

A

Help the court decide whether standard disclosure should be the order

71
Q

What is assessing the costs?

A

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
Q

What is the primary purpose of the budget?

A

Estimate future costs so court can make adequate assessment

73
Q

What 2 things does the costs management order include?

A

The extent budgets are agreed

A ordered budget for each stage of proceedings – recovery over which will not be allowed

74
Q

What is the sanction for not filing a budget on time?

A

Treated as having filed a budget compromise

Can only recover the applicable court fees

75
Q

What procedure should you follow if you need to alter your budget?

A

Revise budget

Try and get other party to agree

Regardless, submit to court

76
Q

When will the court allow alterations to the budget?

A

Significant developments in litigation

NOT
- revisions
- correct inaccuracies

77
Q

At what point can interim applications be made?

A

At any stage in proceedings

78
Q

When does the overriding objective dictate that interim applications should be made?

A

ASAP

79
Q
A

SQE 1 - FKL1 (13 decks)

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