Disputes Resolution Rev Class

Question 1

When does limitation period begin in tort claims involving death?

Answer 1

If injured party dies in 3 years of accrual date limitation period will be:
- 3 years from date of death; or
- 3 years from the date of knowledge of the deceased’s personal representative

However:
- Claim is statute barred if party died after 3 year limitation period has expired

Question 2

What are thepractice directions (step by step) and when are they used

Answer 2

Used when no specific protocol applies

Steps
- claimant to write to defendant with concise details of claim
- defendant to respond if claim is accepted or reasons why not withing reasonable time (14 days in straightforward case / 3 months in complex case)
- parties to disclose key documents relevant to issues in dispute.
- Parties should be aware that court must give permission before they can rely on expert evidence and may limit fees recoverable
- Parties to consider using single joint expert (if needed at all)
- Parties to consider ADR (may be required to give evidence of this if proceeding are issued)

Question 3

What must be included alongside the claim form for a part 8 claim?

Answer 3

• Witness evidence with claim form
• Statement of truth for witness evidence
• Particulars of Claim

Question 4

How should a defendant respond to a part 8 claim? What happens if they fail to respond?

Answer 4

Defendant does not make formal defence. They:
- File their witness evidence with acknowledgement of service
(claim then treated as if fast track)

Failing to respond
- Cannot take part in hearing unless court gives them permission

Question 5

When can you serve claim form by fax?

Answer 5

Only if:
- Party (or their lawyer) has indicated in writing that they will accept service by fax;
- Party has given fax number (including number on their stationary unless indicated to contrary); and
- Fax number is within the jurisdiction

Tip: express consent required even if parties have been communicating by fax

Question 5

What is a certificate of service? What is the difference to this between court service and solicitor service?

Answer 5

• If court serves claim form will issue certificate of service and sent it to claimant
• If proceeding are undelivered court will notify claimant
• If solicitor is servicing need to file certificate of service within 21 days

Question 6

Where should a claim for be sent to?

Answer 6

Non-High Court Claims
- to CCMCC/CNBC
- debts and non-specified damages claims

High Court Claims
- Royal court of Justice or District Registry
- if don’t indicate District Registry then goes to RCOJ
- should indicate which division

Question 7

When can a claimant make an application for summary judgement? What must they show?

Answer 7

Once d gives acknowledge of service claimant can make application for summary judgement if they can show:
- Defendant has no realistic defence to action

Question 8

How can defendant dispute the jurisdiction of the court and what happens if this fails?

Answer 8

1. Tick box in response pack
2. Make application supported by written evidence within 14 days of filling acknowledgement of service

Should not file defence until court has after court has heard application (otherwise taken submission to jurisdiction)

If application fails
- Required to file defence within 14 days

Question 8

When must Part 20 Claim be served? On whom?

Answer 8

No Permission requried
- on all parties (except if contribution/indemnity claim)
- when defence is filed

Permission Required
- within 14 days of issue
- on person against it is made
- court likely to give more directions

Question 9

When must a Part 20 claim be responded to?

Answer 9

Within 14 days of deemed date of service of Part 20 Claim

Question 10

What must be included in service of a part 20 claim?

Answer 10

• response pack
• copy of every statement of case already made
• any other doc the court directs
• statement of truth

Question 11

How must Part 20 claims be responded to?

Answer 11

If already party
- defence in 14 days

If not already party
- defence or acknowledgement in 14 days

Question 12

What is the effect of failing to respond to part 20 claim?

Answer 12

Can obtain judgement

Exception/Addition
- for claim against blame worthy 3rd party
- failure means they are deemed to acknowledge guilt and bound by judgement

Question 13

What will an order for SPECIFIC disclosure include?

Answer 13

• disclose certain docs or classes of docs specified in order
• prepare a supplemental list of docs
• carry out search to extent specified
• disclose any docs located by search

Question 14

What happens if a party fails to serve a witness statement?

Answer 14

• cannot call on witness to give evidence unless court gives permission
• can still apply to adduce evidence despite failure to serve on time if they can give a good reason for the failure

Question 14

What is a Notice to Admit Facts? What is the process?

Answer 14

If party thinks opposition will admit to some facts then can serve Notice no later than 21 days before trial.

If admitted then deemed established

If not admitted but later proved, court may order party who refused admission to pay costs associated with proving them (regardless of if they lose or win case at large)

Question 15

When is a Pre-Trial Hearing used, what is it and when does it happen?

Answer 15

Generally used for multi track case. Purpose is make sure that everything is in place and avoid wasted time/delay.

Takes place at least 10 weeks before trial date.

Question 16

Who prepares Trial Bundle Rules and contents

Answer 16

Claimants solicitor to prepare copies for each party and one for witnesses and bear expenses

Must be filed 3-7 days pre trial

To include:
- info about parties
- case summary
- schedule of issues
- witness statements
- expert reports

Question 17

When / how can party discontinue claim? What effect does this have?

Answer 17

Generally must file and serve notice of discontinuance

May need to obtain permission if:
- active interim injunction
- active interim payment

Effect
- generally have to pay other sides cost for defending (subject to application of qualified oneway cost shifting)

Question 18

What does the CoA consider for retrospective appeals (relief of sanctions)

Answer 18

Must be pursuaded it is reasonbale considering:

1. The seriousness and significance of failure to comply with the rules
2. why the default occurred, and
3. Evaluation of the circumstances of the case (to deal with it in just manner)

Question 19

When should parties send cost budgets ahead of CCMC?

Answer 19

Claim under £50k
- file with directions questionnaire

Claim of £50k +
- 21 days before CCMC

Question 20

What is a Wasted Costs Order and when can it be used?

Answer 20

Means that the solicitor has to pay for legal cost or costs will not be recoverable due to:
- improper, unreasonable or negligent action from their solicitor.

Court must be satisfied that:
- solicitor acted improperly, unreasonably or negligently,
- the conduct caused unnecessary costs, and
- it is ‘just to make the order

Question 21

What is a Tomlin order?

Answer 21

Consent order where terms are not in body of the order but:
- in an attached schedule
- settlement agreement; or
- if necessary a document which is identifiable but entirely separate (and can be confidential)

Question 22

What should you do if you want to enforce Part 36 offer but want to keep terms secret?

Answer 22

Draft a towline order to be filled at court and a separate settlement agreement which is marked as confidential

Question 23

Does defendant have to pay judgement debt if applying for appeal?

Answer 23

Yes
- unless proceedings HAVE BEEN stayed

Question 24

What are the limitation periods for different claims?

Answer 24

Contract
- 6 years

tort
- generally 6 years

Personal Injury
- 3 years

Latent Defect
- 6 years from breach
- 3 years from knowledge/ reasonably ought to know material facts
- longstop of 15 years

Question 25

Personal Injury Protocol

Answer 25

1. Claimants Letter of claim
2. D to respond in 21 days
   - can respond asking for 3 months to