DR 1 Flashcards
What is civil dispute resolution?
2 private parties, claimant seeks remedy (money) from defendant
anything which isn’t criminal litigation: dispute between the state (Crown) and D
Main Civil Courts
Supreme Court
Court of Appeal
High Court - court of first instance
County Court - court of first instance
(Tribunals -> Appeal Tribunals heard in Court of Appeal)
Should proceedings commence in County Court or High Court
specific enactment for either?
PI claim £50k or less / non PI £100k or less- County Court
High Court justified by financial value of claim/complexity of facts/remedies/law/proceedings/importance to the public
County Court
One national court with 170 hearing centres in England and Wales , no separate divisions
Deputy District Judges/ District Judges/ Recorders or Circuit Judges
Rights of audience
Solicitors can advocate in Magistrate’s Cort/ County/ Tribunal/ Upper Tribunal
cannot go to higher courts without assessments to gain Higher Rights of Audience
High Court
The Strand
3 divisions with specialist courts within them - King’s Bench, Chancery, Family
High Court Masters/ Judges
Overriding objective rule of CPR
OO is to enable the court to deal with cases justly and at proportionate cost.
Must be considered at all stages of litigation.
Civil Procedure Rules 1998
CPR governs the procedure of litigation. Rules are supplemented by Practice Directions - both are binding.
White Book
along with CPR, Sweet and Maxwell’s Book used by practitioners and judges.
Who gives effect to the overriding objective?
The court (CPR 1.4) actively manages the case to do so through encouraging co-operation, identifying key issues, using tech), parties are required to help the court to further OO
court has broad powers (deadlines/sanctions/directing conduct)
Courts ensure all cases process even if parties don’t seek their involvement
Overriding Objective requires CPR 1.1 :
a) ensuring parties on equal foot
b) saving expense
c) dealing with cases in ways prop. to £ involved/importance/complexity/£ of each party
d) expeditiously + fairly
e) fair allotment between cases
f) enforcing compliance with rule/PDs/orders
Provisions for vulnerable parties/witness
factor adversely impacting participation/ giving evidence - age/language/disability
Court identifies them then facilitates their participation- extra time/support
PD Welsh Language
English and Welsh treated on basis of equality in cases in civil courts in Wales or that have a connection to Wales
Welsh must be used with notice, ensure Welsh speaking judge/translation facilities
if party fails to comply Costs Order can be made
Costs of litigation
Solicitors fees
Disbursements- court fees/counsel’s fees (specialist)/expert’s fees/other costs
Court has broad discretion of if 1 party should pay other party’s costs in full/part CPR 44.2(1)
General rule- unsuccessful party pays costs of the successful party CPR 44.2(2)
but court has discretion- range of factors incl. conduct/if whole claim succeeded
generally only a reasonable and proportionate sum will be recovered (can be all but unlikely 60% more likely)
What is case analysis?
Done by both D and C, establishes the merits of the case on the basis of duty/breach(contract or tortious or both)/causation/loss at the outset of the client’s instruction and regularly throughout the case
also parties/limitation
Every fact in dispute must be proved by the party asserting it
C- duty/breach/causation/loss- negligence and same + (duty) existence and terms of contract for contract
D- contributory negligence/why D’s facts are correct and so C is wrong
Standard of proof is on the balance of probabilities
more likely than not to have happened
All facts in issue need to be proved (as set out in statements of case)
Exception- some may be treated as established without evidence (formal admissions, res ipsa loquitur - facts speak for themselves- self-evident, inferences of fact)
Limitation
If claim not commenced within the limitation period, C barred from recovering damages, the defendant will have a full defence
Limitation Act 1980
Personal Injury Claims s11 LA 1980
C must bring claim within 3 years of the latest of:
1) the date when the cause of action accrued or
2) the date of knowledge of injured person (s14)
Date of Knowledge s14 LA 1980
knowing that
the injury was significant
and attributable (at least in part) to alleged wrongdoing
the identity of the defendant / who caused the wrongdoing and additional facts supporting claim against defendant
(applies to dependent in case of Fatal Accident)
knowledge of facts important not knowledge of potential claim
includes knowledge C might reasonably be expected to acquire from expert/observation/ascertainability
Fatal Accidents s12 LA 1980
Fatal Accidents Act 1976- dependents of employee (dead from negligence) can claim compensation from employer
Claim cannot be brought if person injured could no longer bring a claim (PI rule)
Claim cannot be brought after 3 years from the later of the date of death/ date of knowledge of the dependent
s33 LA 1980 extending limitation
courts have discretion for PI/fatal accident claims to extend if equitable- depending on conduct/reasons for delay/ effect of late claim on the evidence
Claim for contribution s10 LA 1980
D liable for damage can claim contribution from another person (e.g. shop can from manufacturer - 2 years from date on which the right to recover contribution arose (date of judgment imposing liability was made/payment admitting liability made)
LA 1980- Negligence actions where facts relevant to action not known at date of accrual ss14A and 14B (not applicable to PI)
negligence causes damage far in future - foundation of house built wrong
limitation period extended to 6 years from when cause of action accrued or 3 years from requisite knowledge/right to bring claim
but subject to long-stop limitation date of 15 years from date of latest negligence act/omission causing all or part of damage
knowledge here same as PI but instead of significance, material facts about the damage need to be known
LA 1980- Judgments s24
action to enforce a judgement cannot be brought after 6 years from when the judgment became enforceable nor can interest be recovered after that period
LA 1980 extension due to disability
if C under disability at time cause of action accrued, limitation period starts to run from when disability ends -
2 years for contribution
3 years for PI/fatal accident
6 years in most other
minors are under disability and those lacking mental capacity to conduct proceedings (Mental Capacity Act 2005) s38
General limitation rule of tort and contract LA 1980
limitation expires 6 years after the date on which the cause of the action accrued s2- tort- date of actionable damage, s5- contract- date of breach
Limitation can be extended where claim is based on fraud/ concealment/mistake
s32 LA 1980
limitation doesn’t start until C discovers fraud/concealment/mistake or could with reasonable diligence have discovered it
Parties- claim form requires full name of each party - Partnerships
CPR7.2A and 7A PD 5A- claims must be brought against the name under which the partnership carried on business at the time the cause of action accrued unless inappropriate (name changes/mergers)
personal assets at risk- also set out individual names of partners
Parties- claims against sole traders
list both the individual and trading name
Parties - LLPs
members can’t be sued personally, use registered name
Parties - companies
full registered name including suffix (e.g. plc)
company may be represented at trial by an employee if the employee has been authorised to do so by the company and the court gives permission
Parties- trusts and deceased
Trusts- by/against trustees, executors, administrators (not beneficiaries- orders binding on them anyway)
Dead- C personal representative for claimant or appointment by court/ claim proceeds in absence CPR 19.8(1)
Dead Defendant- claim brought against their personal representatives if grant of probable/administration made, if not against estate/ C must apply to court for a representative of the dead’s estate to be named
Parties - children and protected parties
do not have the capacity to pursue claims on their own behalf and must be represented by a litigation friend, both named in the title to the proceedings on documents
person above 18 presumed to have capacity - burden of proving the contrary rests on whomever asserts incapacity
Parties- determining incapacity
legal advisors must determine - can the person recognise the problem they encounter/ explain the problem clearly/ understand and evaluate advice given/ understand the effects of choosing one course of action over another and give effect to this
Litigation friend
represents children and protected parties
must fairly and competently conduct proceedings + has no adverse interest + if Claimant undertakes to pay any costs required (subject to being repaid)
often relative/ordered by court
not always needed by child
documents must be served to them
appointed at the time claim is made if C /1st step of the proceedings if D
claim can’t be made without this
Pre-action conduct practice directions
set out the court’s expectation for steps taken before issuing proceedings
-should take stock of positions not just issue proceedings mechanically (para 12)
- proceedings can be avoided where possible (negotiation/ADR better?- para 8 PD, silence to opponent suggesting ADR is hostile)
- conducted more efficiently (limit issues/admit liability quicker)
Consequences of non compliance with pre-action PD
- increasing £ of costs/interest to be paid/decreasing £ received
- court stays the proceedings until missing steps taken
When imposing sanction consider overall effect of non-compliance on other party (unlikely for minor infringements)
Court asks for explanation of non-compliance
Discontinuing proceedings (claimant £ D’s costs unless D uncooperative in pre-action)
Pre- conduct PD non- compliance justified
- limitation period about to expire (necessary to issue proceedings ASAP), issue stay of proceedings after to ensure pre-action PD followed
- another reason for urgent proceedings/element of surprise (search order (fear of document destruction))
CPR 7- Rules governing commencement
HC and CC have concurrent jurisdiction.
Non PI- claim’s £ financial worth over £100k either HC or CC
Non PI - under £100k, County Court
PI - £50k or more, either HC or CC
PI - under £50k County Court
7A PD 2.4 If either consider financial value/complexity of facts, law, remedies, procedure/ importance to public, C chooses HC judge
Practice direction for pre-action (applies to all cases, except where specific protocol applies overriding conflicting parts of PD)
- C writes Letter of Claim to D
- Within a reasonable period (depending on claim’s complexity 14days - 3months ), D sends response letter which should
- accept the claim
- reject the claim (in whole/part w/ reasons) - Parties disclose key docs, appropriate negotiations, settlement proposals
Pre-Action Protocol for PI claims
(don’t fall under other pre-action protocol, likely to be fast-track (up to £25k but spirit of protocol should be followed in higher)
- Claimant writes Letter of Notification to potential D (brief details, D contacts insurer)
- Parties consider rehab needs (ongoing medical/care)
- Claimant writes Letter of Claim to D w/ full details of claim
- D acknowledges Letter of Claim within 21 days
- D investigates + sends Letter of Response within 3 months of their acknowledgement. If D denies liability/quantum/both then
- Parties disclose key docs, appropriate negotiations, settlement proposals. C sends schedule of losses (with details.)
- Joint selection of quantum(medical) expert or claimant discloses report-> D sends written qs.
How to issue claim at court
Claim Form N1 sent to court, D and C on file and court issue fee
date of issue on claim form stops limitation time and starts time for which claim form must be served (for HC and CC)
Transfer between courts - Courts disagree with claimant’s choice
7A PD 2.4 + facilities of court for disabled/availability of specialist judge
Consequences- C pays cost of transfer, if matter transferred from HC to CC- costs awarded in claim can be deducted by up to 25% (at courts discretion)
Serving the claim form- Who sends?
done by court (1st posts, claimant sent notice of issue- deemed date of service, if unable then C does) /claimant or their solicitor (must notify court who sends them the forms, certificate of service filed at court within 21 days w/method, date, address unless D filed acknowledgement of service)
Service of Claim Form- How- take relevant step?
Court- 1st post
C - personally (wherever in jurisdiction they are found- current/last known reside/business/given to court as address for proceedings - unless solicitor’s address given then must be there) permitted address, 1st post, doc exchange, fax/ electronic- only if D said they would allow , other authorised by court CPR 6.3
if not invalid + so is judgment
if LLP- principal office in that jurisdiction w/ real connection to claim
post must be 1st class
Issuing County Court claims
money claims + bulk claims issued centrally in Civil National Business Centre (send N1 here) then -> local county court hearing centre or Money Claim Online (up to £100k, 2 or less Ds )
not money-only - send N1 + fee to any centre
Service of claim form- when?
before midnight on calendar date 4 months after the date of issue on claim form (posting/leaving with DX counts not arrival)
if not issue new claim/another fee
extension- CPR 7.6- v strict- within 4 month validity + good reason (not further evidence from D), if after deadline, only if C failed to serve/C taken all reasonable steps to comply/app made prompt (not solicitors/insurers instead of serving D where needed)
Particulars of claim can be in claim form or separate doc later
if w/ claim form, must also send respond pack form F9 (form for admission + defending + acknowledging service) or within 14 days of service of claim form within validity of claim form (4 months)
C must file copy at court within 7 days of service to D unless already filed.
valid methods are same as claim form
Deemed date of service- claim forms
date received irrelevant
Claim forms- 2 business days
after relevant step (taking whatever method)
C- time limit for particulars of claim starts
D- deadline for serving a response (if particulars included- consider earliest possible DDS for particulars) starts
Deemed date of service - other docs
Instant methods- before 4:30pm on business day- same day or if otherwise, next business day
Non-instant methods (post/DX) - second day after posting/giving to DX provider if business day, otherwise next business day (never non-business day)
Statements of case
Key docs setting out position (claim, particulars, defence, part 20, reply )
must comply with CPR/be correct format - otherwise requires a formal amendment w/ input of court giving permission, impacting other statements of case and amendments from opponent- wastes time -> costs consequences + tactical disadvantages
Statements of case format
Case heading must include court + division, claim number, full name of party, party’s status (C/D)
Numbered paras and pages, numbers in figures, ref to docs filed at court, name of doc drafter, statement of truth
Statement of truth (22.1)- allows SoC to be used as evidence, ref. to contempt of court if not true
Claim Form
1st SoC
Form N1
Parties (individuals/position/business) + addresses
Concise statement of nature of the claim + Remedy sought by claimant (not incl. costs)
Statement of the amount claimed C16.3 (exact £, region, unsure)(court not limited to this)(not cost/interests/counter/CI/benefits)
PI- pain suffering loss of amenity under/over £1.5k
If either CC/HC and HC chosen- jurisdictional enforcement needed
Money claim HC- £100k or over, enactment showing it should be HC
PI HC- £50k or more, specifiy specialist High Court list
Non PI £100k or more- state exact amount + that C expects to recover over £100k
Particulars included where concise
Particulars of claim
C’s main SoC
Concise statement of the facts on which the claimant relies (duty, breach, causation, loss) (evidence + law done later)
Closes with prayer- summary of remedies sought by C
if applicable:
Claim + grounds for aggravated/exemplary/provisional damages
PI - C D.O.B, injury details, schedule of past/future expenses losses + expert medical reports relied on
Land claim- identify land and clarify if residential premises included
If based on written/oral/conduct agreement that should be attached/set out (by whom, to whom, when, where)
Past convictions/fraud/illegality/unsoundness of mind/human rights arguments
Particulars of claim- set out if interest sought by C
If C seeks interest on £ claimed (statutory s35A SCA tort/in their contract) Specified claim- debt/specificied damages exact calc. incl % rate/dates/total £/ daily rate of interest or generally (loss of goodwill/rep/future earning/profits/ where remoteness is issue)
if hybrid- choice- separate or together as unspecified
Statutory interest - s35A SCA in HC and s69 CCA - courts have discretion on if + how much
PI where damages over £200, some interest must be awarded unless special reasons, in debt- if D pays whole debt during proceedings, some interest must be awarded
D’s response to claim
- file or serve an admission
- file a defence
- file an acknowledgement of service (if D unable to file defence within time limit of 14 days/ wants to dispute court’s jurisdiction)
- response of money paid (debt claim)
Defendant files defence
- sets out why the claim is disputed
- must be filed within 14 days of deemed date of service of the particulars of the claim if not acknowledging service (then 28 days from DDS of particulars)
- filed at court and served on all parties
Defendant acknowledges service (Form N9)
- need longer than 14 days to prepare their defence / wish to dispute the court’s jurisdiction
- must be filed within 14 days of DDS of claim form or 14 days of DDS of particulars (if claim form says particulars are to follow)
- filing an acknowledgement of service extends the time for filing defence to 28 days from DDS of particulars of claim (can be done earlier)
- court notifies claimant in writing that service acknowledges (C can apply for judgment in default if deadline expires and no defence filed)
Longer time limit for filing for defence
- Claim form served out of the jurisdiction (time depends on country)
- D makes application disputing court’s jurisdiction (don’t need to file defence before that hearing)
- Where claimant applies for summary judgment (don’t need to file defence before this hearing)
- Court makes an order for service for a claim form on an overseas agent/principal -> court specifies time period
- Defendant and claimant agree to an extension of time up to 28 days -> notify court in writing (up to 56 days from DDS of particulars without applying to court for permission to extend)
Applications to court for extension of time to serve defence
C & D can’t agree to longer than 28 days
Claimant can refuse to agree to extension
-> Defendant must apply to court with reasons and impact of extra time on conduct of claim
Court ensures overriding objective upheld in their decision (justly + proportionate cost)
Response of money paid
Defendant served with claim for specified amount of money but already paid claimant before receiving the claim
Defence that debt already paid
Court asks claimant for confirmation -> must reply to court + defendant within 28 days or stayed -> claimant can end case or continue (do not agree that full debt paid/wish to recover interest + costs) as defended claim
Defendant admitting the claim
No defence/doesn’t wish to dispute
Completing (filing/serving) appropriate admission form, part of response pack within 14 days of service of particulars of claim
Form N9A- specified amount
Form N9C- unspecified, non-money, return of goods
Admitting specified claims
Form N9A
In full- judgement entered for the debt, interest, court fees, fixed costs -> claim ends
Except where one party is child/protected, C can enter judgment against D for admitted sum including interest
In part- judgment can be entered in part (admitted part of debt + interest on that part) but defendant must file a defence for the unadmitted part which will continue to trial
Admitting unspecified claims
Form N9C
Judgment for liability only and there will be hearing to determine quantum (£ + interest)
D can admit liability in full and offer to pay a sum in satisfaction of claim (offer in relation to quantum) -> if accepted by C then claim ends
D can request time to pay after admitting to a specified amount of money (whole/part of specified or satisfaction of unspecified)
Can be done at same time as admission, D supplies personal financial information
Claimant can decide not to accept D’s payment proposal -> court determines rate of payment considering D’s circumstances and C’s objections
Judgment after claim admitted (final order disposing claim)
C notified of any admission + has option to enter judgment against D (no judicial involvement - complete request for judgment within 14 days of notice of admission noting amount)
Judgment payable within 14 days of being entered (sent to parties by court) unless otherwise agreed upon
Indicates C is successful party
D doesn’t want judgment - enforcement proceedings/public searchable register for 6 years (credit rating)
Instead of judgment- Tomlin Order or C withdraws claim
Admitted specified claim paid in full (incl. interest/court fee/costs) within 14 days of responding to claim, unlikely that judgment entered
Amount of judgment
Specified claims:
- amount of claim including interest to date of issue of claim
- interest since date of issue (daily rate in particulars)
- court fees (issue fee on claim form)
- fixed costs (extra on judgment)
Credit given for any D paid -> net balance due
Unspecified claims- > judgment on quantum hearing with amount due (interest + costs)
Court has power to award simple interest on debts due where no other provision relevant
Defence: Defendant’s main statement of case
- responds to every point of allegation in Claimant’s particulars of claim (admit/deny/require proof)
- states full details of defendant’s own case
- limitation defence (state date of expiry)
- D can dispute C’s valuation of claim (reasons + their estimate)
- mitigation/reduction of damages : set off (amount owed by C), any other defences/issues of fact not in claim, human rights arguments
- counterclaim incl. in defence
- PI claims: D must state if they agree/dispute/have no knowledge of matters/past + future expenses & losses/any medical report, with reasons + own counter schedule/medical evidence
Counting time
- Day on which period begins is never included (day 0)
- If end of period defined by reference to event (hearing/trial), day on which that event occurs not included
- Where specified period 5 days or less, Saturdays, Sundays, Bank Holidays, Christmas Day, Good Friday in period doesn’t count
- Where deadline is doing act at court office and deadline falls on day court office is closed-> can be done on next day court office open
Defendant admits to allegation
C doesn’t need to provide further evidence
- should admit everything non-disputed, uncontroversial (costs consequences of not admitting when you should have)
Defendant denies allegation
Where if it had occurred, D would know
-> must give reasons (state their version)
-> C must prove allegation
D requires proof
D unable to admit/deny as they don’t have direct knowledge of it)
-> C must prove allegation
Omission of C’s allegation in D’s defence
D deemed to have admitted to it unless set out own case of it
Money claim- amount claimed not admitted unless D specifically admits it
Reply : optional statement of case
Claimant alleges facts in answer to defence which were not included in claim- answers new points raised in defence
No particular structure
Filed at same time as directions questionnaire (case management doc filed after claim defended (14 days notice given))
Reply is last statement of case in claim, court’s permission needed for any more
Default judgment
Applying for judgment to be granted in claimant’s favour without trial if
- D hadn’t responded to the claim through acknowledgement of service/defence within time limits and
- claim not admitted by defendant and
- D hasn’t applied for summary judgment/strike out
NOT FOR: delivery of goods claims (Consumer Credit Act 1974, Part 8 claims, claims where PD excludes default judgment)
Default judgment procedure
Claimant must show that
- time expired for acknowledgement of service (D hasn’t submitted AoS or defence)/ time expired for defence (D submitted AoS not defence)
- claim hasn’t been admitted/satisfied by D
- D hasn’t made application for summary judgment/strike out
Money claims- specified sum: C files request for judgment -> court makes judgment for amount sought + fixed costs + interest
Money claims -unspecified sum: C files request-> court enters judgment for sum to be decided at hearing
Non-money claims: not on paper - C applies for default judgment hearing -> claimant explains reasons for default judgment and what judgment will be given -> court has discretion
Strike out statements of case
No legally recognisable claim or defence
Default judgment doesn’t look at content of statements
Summary judgment
Cases with weak facts (dispose parts/whole of case without trial)
C can obtain default judgment against more than 1 D
If it can be dealt separately from others (not where one of several liable not all)
Default judgment set aside by
Application by D or by court to avoid injustice
Determined at hearing unless C consents to setting aside
Court may set aside with conditions attached (D pays C’s cost of hearing)
Court must set aside where:
Judgment wrongly entered (time limit hadn’t expired, AoS/Defence had been filed on time, summary judgment/strike out had been applied for/ D had satisfied whole claim before or required time to pay)
Court may set aside default judgment where it was correctly entered
D has real chance of successfully defending the claim (arguable chance not enough)
or there’s another good reason judgment should be set aside/D should be allowed to defend (C didn’t serve response pack/public interest demands full + fair hearing/C made D believe their claim wasn’t forthcoming)
Consider how prompt D’s application to set aside was + overriding objective
Court has full discretion
Where courts may set aside- Denton- applications for relief from any sanction
Can be set aside with conditions attached
Other possible statements of case served when responding to claim
- counterclaim
-> C serves defence to counterclaim
or C serves response to first defence - reply
