Disputes Principles Flashcards
Grounds for summary judgment (interim application)? Must be supported by evidence (usually witness statement)
1) No real prospect
Claimant has no real prospect of succeeding in claim
OR
Defendant has no real prospect of successfully defending claim
2) There are no other compelling reasons why the case should be disposed of at trail
(Compelling reasons egs: D needs more time to investigate; expert evidence required; multi-party litigation; scrutiny of key docs required; D has right to trial by jury, eg fraud)
STATEMENTS OF CASE
x3 main ones?
x2 which are sometimes relevant?
Claim form (C); particulars of claim (C); defence (D - answers particulars)
Counterclaim (D); reply (C - replying to defence where new points arise)
DEEMED DATES OF SERVICE
1) Claim form
2) Other docs (eg particulars) if served with claim form
3) Other docs if served separately to claim form GR + specific rules depending on method of service
1) Second business day after completing the method of service (eg posting the form)
2) see 1 - deemed dates of service for claim form applies
3) GR: 14 days of claim form + within 4mos of claim form’s issue. Method rules:
A) Post (1st class) or DX: 2nd day after posting if a business day, otherwise next business day
B) Instant: before 16:30 on business day deemed served immediately. Otherwise next business day
COUNTING TIME
- Day on which period begins is NOT included
- Day on which period ends IS included unless stated
- 5 days or less: do NOT count weekends
- Court office closed: in time if done on next open day
Claim form - x4 elements
1) Parties’ names and addresses
2) Nature of claim (brief)
3) Remedy sought - specified or not (affects allocation of track)
4) Statement of value (and justification for HC if appropriate)
Particulars of claim - x3 elements
1) DUTY, BREACH, CAUSATION, LOSS
2) Written agreement - attach. Oral agreement - specify details of words spoken
3) Claim for interest (more detail needed if remedy sought is specified)
(PI claims: need claimant’s DOB, details of injuries, schedule of past and future expenses and losses)
Defence (considers limitation, mitigation, set-off, counterclaim) - 3 options
1) Admit (C won’t have to prove these issues)
2) Deny (give reasons + alternative version of events). Saying that if facts had occurred D would have known about them
3) Require proof (if D cannot admit or deny)
LIMITATION PERIODS (prelim consideration) in which to commence claim (otherwise D has a full defence)
1) PI: 3yrs (of cause of action accruing/ date of knowledge of person injured)
2) Dependent person on employee who died due to employer’s negligence: 3yrs (of date of death/ date of knowledge of dependant)
3) Person liable for damage claiming contribution from another: 2yrs (from date of judgment imposing liability of first party/ date on which first part agreed on amount of payment due)
4) Latent damage (negligent act causes C damage they’re unaware of for a long time. NOT for PI): 6yrs from when cause of action accrued, or 3yrs from when C had requisite knowledge and right to bring a claim. LONG-STOP LIMITATION: 15yrs from date of latest negligent act which caused damage
5) Action to enforce judgment/ recover interest: 6yrs from when judgment enforceable
6) Tort and Contract claims: 6yrs from when cause of action accrued
NOTES
- C under disability (lacks capacity; u18) when cause of action accrued: limitation starts to run from when disability ends. Contribution: 2yrs; PI/ fatal accidents: 3yrs; most other cases: 6yrs
- “Date of knowledge”: injury significant; attributable at least in part to alleged wrongdoing; identity of D; identity of wrongdoer if other than D
- Note: court can extend time for PT and fatal accidents if equitable
PI Limitation
3yrs from date cause of action accrued OR knowledge of injured person (whichever is later)
Fatal accidents limitation
3yrs from date of death OR date of knowledge of dependant (whichever is later)
Contribution to damage limitation
2yrs from date right arose
Latent damage limitation
(Negligence causes C’s damage but they’re unaware of it for a long time)
6yrs from date caused of action accrued OR 3yrs from requisite knowledge/ right to claim arose
15yrs longstop
Enforce judgment/ recover interest limitation
6yrs from when enforceable
Tort/ contract limitation
6yrs from when cause of action accrued
Limitation automatic time extensions
When C is has disability (u18 or lacks capacity) when cause of action accrued
Limitation starts running from when disability ends
2yrs: contribution
3yrs: PI/ fatal accidents
6yrs: other
(u18 = add years between age and 18 to extension, ie if 14 when PI cause of action accrued add 4 years to get to 18 then the 3yr extension)
