DISPUTES Flashcards
1
Q
What courts are involved in civil claims
A
Supreme
Appeal
High
County
2
Q
What is the overriding objective?
A
To deal with cases justly at proportionate cost
3
Q
When can claims settle or be withdrawn?
A
At any time
4
Q
What must you comply with before commencing proceedings?
A
Practice Direction and Pre-Action Protocols
5
Q
What are the key points about pre-action protocols?
A
- Exchange sufficient info to understand positions/choose how to proceed
- try and settle
- consider ADR
- efficiently manage proceedings
- reduce costs
6
Q
What specific pre-action protocols are there currently?
A
PI
Construction and engineering
Professional negligence
Debt
7
Q
What happens if you don’t obey the pre-action?
A
Sanctions – stay proceedings, lower interest rates
8
Q
What steps are common to all types of civil claim?
A
Pre-Action
Statements of case
- Claim form/particulars
- Acknowledgement of service
- Admission/defence/counterclaim
Case management
- Allocation
- Directions
- Trial
9
Q
What happens if allocated to small claims?
A
Directions
Preparations for trial and trial
Enforcement/appeal
10
Q
What happens if allocated to fast track?
A
Directions OR directions + CMC
Disclosure/witness statements/experts
Trial/prep for
Enforcement/appeal
11
Q
What happens if allocated to intermediate track?
A
Directions
Disclosure/witness statements/experts
Trial/prep for
Enforcement/appeal
12
Q
What happens if allocated to multi track?
A
Directions + CMC
Disclosure/witness statements/experts
Trial/prep for
Enforcement/appeal
13
Q
Summarise the difference between each track
A
They are mostly the same, in that fast, intermediate and multi all do disclosure/witness statements/expert reports. Only fast track skips these steps and goes to trial.
All of them do directions, however, multi-track always has a case management hearing AS WELL. In intermediate track, they SOMETIMES use a CMC and sometimes not..
14
Q
In which courts can you start a claim?
A
County
High
15
Q
What is the decision tree for deciding to start in county or high court
A
- Enactments telling you which court
- PI claim less than 50k = County
- Non-PI under 100k = County
- Is high court justified based on value, complexity, public interest
16
Q
How many county courts technically exist?
A
1 court but 173 centres
17
Q
What is a district registry?
A
Regional centres of the high court
18
Q
Where do London based high court claims start?
A
Royal courts of justice
19
Q
What are the high court divisions
A
Chancery
Kings bench
Family
20
Q
What goes to kings bench?
A
General list (PI, negligence, contract, debt)
Administrative court (judicial review)
Planning (e.g., building and highways)
Admirality (shipping)
Circuit commercial (companies, insurance, banking)
Commercial (business disputes, fraud, shipping)
Tech and construction
21
Q
What goes to chancery?
A
Insolvency and companies list (shareholder disputes, general problems with running companies)
Revenue list (tax with HMRC)
Competition list (competition law)
Business list (broad disputes, tort, breach of contract)
Property/trusts/probate (all land really)
Intellectual property
22
Q
What is the financial list?
A
It is both KBD and chancery – financial disputes of more than 50 million
23
Q
When will permission to supreme court be granted
A
General public importance
24
Q
Which judges are My Lord/Lady?
A
Supreme court
Appeal
High court judge
25
Which judges are judge?
High court master
District judge (county)
Deputy judge (county)
26
Where can solicitors advocate without high rights?
Mags
County
Tribunals/Appeal
27
Can solicitors generally go to high court?
No
28
How are vulnerable witnesses defined?
Somebody who might not be able to participate fully in proceedings
29
What is a case analysis?
Looking at the claim and assessing its merits etc
Duty
Breach
Causation
Loss
Parties
Limitations (e.g., deadlines)
30
Who has burden of proof?
Party asserting a fact
31
What does the D generally have to prove?
Contributory negligence
That their facts of the case are true
32
When will evidence not be required to prove a fact?
Formal admissions
Presumptions (ipsa loquitur) -- facts speak for themselves
Inferences -- common sense conclusions
33
What are solicitors fees called?
Disbursements
34
What should you be prepared for regarding costs?
1. Covering your own
2. What happens if you have to pay opponent
3. That you're unlikely to recover all
35
What is a common % that the court allows recovery of costs?
60%
36
When are non-parties ordered to pay costs
Usually only if they are a funder of some kind
37
What is a common % to recover costs on an indemnity basis?
70-80%
38
What factors go into deciding whether or not costs were proportionate?
Sums in issue
Value of non-monetary relief
Complexity
Additional work needlessly generated
Wider factors e.g., public importance
39
What is the standard deadline to comply with an order for costs?
14 days of:
- date of judgement stating costs
- date of certificate stating the amount
- such date court specifies
40
What are fixed costs?
There are pre-prescribed amounts for fast, inter and small track
HOWEVER, there are complexity bands within fast and intermediate with different fixed costs associated
41
What are assessed costs?
Court assesses and makes an order when parties cannot agree
42
What is summary assessment costs?
Parties prepare statement of costs, on standard form court reviews them and hears short submissions then makes a decision
43
What is the deadline to provide the forms for summary costs assessment?
24hr
44
When is the summary assessment commonly used
Fast track cases
End of interim hearing applications
45
What happens in a detailed assessment of costs?
Orders for detailed assessment
Receiving party serves notice of commencement an bill of costs
Points of dispute served on receiving party by paying party within 21 days
If parties cannot agree, receiving party should file a request for a detailed assessment hearing
46
What is the deadline to dispute costs in a detailed assessment of costs?
21 days from service of bill of costs
47
What is an interim costs order?
When court makes a costs order as to those associated with an interim hearing
48
What is costs in any event?
Doesn't matter who wins overall, x will pay these costs
49
What is costs in the case?
Party who wins costs at trial, will also win costs of this hearing
50
What is costs reserved?
Decision is put off later, or until costs in the case
51
What is claim/d costs in the case?
Whoever wins costs of the case, gets this paid?
52
What is costs thrown away?
This hearing was a waste, and so if it was your fault you pay
53
What is costs of and caused by?
Party must pay costs resulting from smth that party has done
54
Costs here and below -what is
Party is entitled to costs up to now, and also from lower courts
55
When might it be justifiable not to comply with the pre-action protocols?
Limitation period about to expire
Another reason for urgent proceedings or element of surprise
56
What is the pre-action protocol for PI claims?
C notify D so D can notify insurer
Consider rehab needs
C gives D letter of claim
D acknowledges letter in 21 days
D investigate and sent letter of response within 3mo of letter
- If deny, move to disclosure/negotiate/settle
Joint selection of expert
57
When is the special PI protocol usually applied?
Likely allocated to fast track (25k)
Spirit should also be followed for higher value claims
58
What is limitation period for PI?
3y from
- date of cause of action
- date of knowledge of injury
59
What is limitation period for fatal accidents?
*Family cannot bring if person injured would not have been able to claim (e.g., PI rules)
3y from later of
- DOD
- Date of knowledge of the dependant
60
What does date of knowledge mean?
Knowing it was significant
Attributable to wrongdoing
Identity of D
ID of person other than D who did the wrong doing
61
What will court look at when considering whether to extend limitation?
Conduct
Reason for delay
Effect of delay on evidence
62
What is the limitation date when seeking contribution from another party?
2y from
- date of judgement on party a
- date party agreed their liability
63
What does latent damage rules not apply to?
Personal injury
64
What are the limitation periods for latent damage?
6y from
- cause of action OR
3y from
- knowledge
- right to bring a claim
long stop of 15y
65
What is the deadline for an action to enforce a judgement?
6y from when the judgement was made
66
What is limitation period for action in tort?
6y from cause of action
67
What is limitation period for contract?
6y from breach
68
How does temporary disability affect the timings?
Limitation starts from when disability ends
- 2y for contribution
- 3y for PI/fatal accidents
- 6y in most other cases
69
How does being a minor affect limitation?
Considered as under disability
70
How does limitation work where theres fraud e.g., D was actively covering up?
Limitation runs from when mistake was discovered
71
What are the types of ADR?
Negotiation - communicate with other party
Mediation - via third party
Arbitration - impartial adjudicator which is final and binding (in contract or by choice)
Med-arb (first try mediation, then go arb)
Early neutral/expert appraisal (non-binding assessment)
Expert determination (expert determines dispute -- pre-specified in contract)
Conciliation - blend of techniques, check each time
72
How should you refer to partnerships in claims?
By the name they did business under
set out their names too if personal liability is likely
73
How to refer to a sole trader in a claim?
Both individual and trading nam
74
How to refer to an LLP in a claim?
Full registered name of LLP including the suffix
75
How to refer to a company in a claim?
Registered name and suffix
76
How to refer to trusts in a claim?
The person you are specifically claiming against
77
How do you refer to a deceased person in a claim?
Court order:
- claim to proceed in their absence
- person appointed to represent
78
How do you refer to a dead D
- Against PRS (with grant of probate)
- against the 'estate'
- apply to court to order somebody to represent the deceased
79
Who has burden of proof regarding capacity?
Person trying to say they didn't have it
80
Can children pursue claims on their own behalf?
No
81
What questions should legal advisors ask to determine capacity?
Can they recognise the problem
Can they explain the problem from those they seek advice
Can they understand and evaluate advice
Can they understand impact of one course of action over another
82
What is a litigation friend
Someone representing a child or protected party
83
Criteria for being a litigation friend?
Can be fair and competent
No adverse interest
Undertakes to pay childs costs
84
What considerations for service are there for children/protected?
Must serve on litigation friend
Must refer to them in the title proceedings as represented by friend
85
How is a litigation friend chosen?
Volunteer a certificate of suitability
Court of protection order
Court permit child to act alone
86
What are the financial thresholds for high court vs county?
Non PI up to 100k MUST be county
PI less than 50k MUST be county
Above that it is either or
87
What is disregarded when considering claim value for high vs county?
Interest
Costs
Counters
Contributory ng
Deduction of social security
88
What are the consequences of getting the court choice wrong?
Transfer and pay costs of transfer
Costs deduction of 25% where it was in high but should have been county
89
Who do you need to send copies of claim form to?
Court file
Each D
C
90
What is the timing significance of the claim form?
Stops time for limitation period
Starts clock for sending claim form
91
Who can serve the claim form?
Court
Claimant/sol
92
What will court do if they serve the form?
Send claimant notice of issue with deemed date of service
93
What is the procedure for Csol to serve claim form?
Notify court they want to serve themselves
Court will send them sealed copies
Csol notify court within 21 days of service certifying details of it
94
When do you not need to file a certificate of service?
If there has been an acknowledgement of service
95
When can you serve by fax
If sol indicated this was acceptable
96
When can you serve by email
Only if they said you could
97
Where can you serve a D?
Personally - anywhere
Fax/email - what they indicated
Address/post - solicitors (if provided), residential, business and has given for purpose of serving
98
What is the deadline to issue the claim form
4mo after the relevant step of date of issue
99
What is relevant step for personal service?
Giving it to D
100
What is relevant step for first class post/DX?
Posting/leaving it with DX
101
What is relevant step for FAX?
Completing transmission
102
What is relevant step for electronic method?
Sending the transmission
103
What happens if claim form isn't served in time?
Claim fails, will need to reissue and pay fee
104
How to get claim form service period extension?
Apply in timeline
Show good reasons
105
When can claim form extension be granted after the 4mo deadline?
Court failed to serve the CF
C took all reasonable steps to comply
Application was made promptly
106
What do you also have to provide if you give the claim form and particulars together?
Response pack N9, forms for:
- admission
- defence
- acknowledging service
107
When must particulars be served if not with the particulars?
14 days of claim form, within period of validity of the claim form
108
If you serve particulars after claim, when do you serve response pack?
With the particulars
109
What do you have to do after serving particulars
Give court a copy in 7 days of service
110
When is a claim form deemed served?
2nd business day after completion of relevant step
111
What is a business day?
Any day not sat, sun, bank hol, good fri or christmas day
112
Other than claim form, what is deemed date of service for instant methods?
Served on same day unless after 4.30
Otherwise; next day
113
What is deemed service for all other than claim for non-instant methods?
Second day after posting
Or next business day
114
Why file and acknowledgement of service?
Needs longer than 14 days to file defence
Wants to dispute jurisdiction
115
What is period of time for filing an acknowledgement of service?
14 days from particulars
116
Is it compulsory to acknowledge service?
No
117
What prelim info do you give on an acknowledgement of service>
Tick whether you will be defending all or part or disputing jurisdiction
118
How long does acknowledgement of service extend the deadline to defend
to total 28 days
119
When does longer period of time to defend apply?
out of jurisdiction
Apply to dispute jurisdiction
Apply for summary judgement
Court order service of claim form for somebody overseas
120
How long extension for defence can be agreed>
further 28 days
total 56 from deemed date of particulars
121
Can court grant extension of longer than 28 days
yes
122
What is a money paid response?
When its a debt action but you already paid the money
