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SQE 1 > DR 1: Pre action steps > Flashcards

DR 1: Pre action steps Flashcards

1
Q

When should Alternative dispute resolution (ADR) be used?

A

Always unless:
□ obviously inappropriate (eg injunction required)
□ other party unlikely to co- operate
□ other party cant be trusted to comply with an award.

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2
Q

At which stages should the parties consider settling by ADR?

A

ALL stages

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3
Q

What should a party do if they dont wish to engage in ADR proposed by the other party?

A

serve a witness statement giving reasons within 21d of proposal

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4
Q

Will a witness statement giving reasons for not engaging with ADR be shown to the judge?

A

Not until costs arise

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5
Q

What is the effect of not responding to a reasonable proposal to attempt settlement by ADR?

A

could have significant impact on costs

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6
Q

When can a party be ordered to contribute to the others costs because of what happened during ADR?

A

If it can be established via admissible evidence that its conduct caused mediation to fail where otherwise the mediation would have had a reasonable prospect of succeeding

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7
Q

6

What will the court consider when deciding if costs penalties should apply for not engaging with ADR?

A
  1. Nature of dispute
  2. Merits of case,
  3. Extent to which other settlement methods attempted
  4. Costs of ADR disproportionately high
  5. Effect of delay
  6. Did ADR have a reasonable prospect of success?
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8
Q

Conditions for court to stay proceedings and order parties to engage in ADR?

A
  • It doesn’t impair essence of Cs right to proceed to judicial hearing
  • Its proportionate to achieving the legit aim of settling dispute fairly, quickly and at reasonable cost
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9
Q

In the directions questionnaire, what are solicitors required to confirm they’ve explained to their client regarding ADR?

A

(a) the need to try to settle
(b) the options available
(c) the possibility of costs sanctions if they refuse to attempt to settle.

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10
Q

What are the types of ADR?

A

Mediation
Arbitration

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11
Q

What is Mediation?

A

Means of solving disputes with assistance of independent 3rd party who can help parties reach own conclusion but cant impose a solution

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12
Q

Can a mediator impose a solution on the parties?

A

No, just help parties reach own conclusion

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13
Q

Is Mediation voluntary?

A

Yes unless ordered by court

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14
Q

Procedure for mediation

A

a) Parties agree on mediator (independent expert 3rd body to act as ‘go between’)
b) Mediator sent written statements from both parties and will discuss case with them on a without prejudice basis

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15
Q

Will a future judge know about mediation discussions?

A

No

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16
Q

Cost and speed of mediation, arbitration and litigation?

A
  1. Mediation: Cheapest/fastest
  2. Arbitration: Quicker (and possibly cheaper) than court (arbitrator may be expensive)
  3. Litigation: normally most expensive, slow because of court process, waiting times, stages, formality, have to try ADR first
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17
Q

Why is mediation flexible?

A

no legal requirements parties can choose procedure followed

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18
Q

Is mediation confidential?

A

Yes, takes place in private, no formal disclosure procedire

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19
Q

When can you withdraw from mediation

A

at any time

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20
Q

What commercial reality factors are relevant to mediation?

A

*3rd party can assist parties to arrive at realist & workable settlement inc arrangements court couldn’t order
* Non confrontational =can preserve business relationship

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21
Q

Are mediation decisions enforceable?

A

Not automatically binding and unenforceable BUT can enter contract with agreed terms so can sue for damages

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22
Q

What is arbitration?

A

Parallel to civil justice system-substitute to litigation

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23
Q

Can you use the normal court system once using arbitration?

A

No

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24
Q

Is arbitration voluntary?

A

Yes in that enter into it voluntarily or agree to decide matter this way once dispute arose

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25
Q

What are the 2 ways arbitration can arise?

A

a) Contractually bound to use
b) In absence of arbitration clause, parties may agree to use arbitration once dispute has arisen

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26
Q

When does the Arbitration Act 1996 (governing arbitration) apply?

A

if agreement to arbitrate is in writing

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27
Q

Procedure for arbitration?

A

a) Dispute referred to independent arbitrator (may be specified in original contract, can be expert on area)
b) Arbitration process-less formal than court
c) 3rd parties decision binding on both parties

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28
Q

Is arbitration flexible?

A

Less formal than court, arbitrator makes decisions NOT parties

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29
Q

Is arbitration confidential?

A

Takes place in private

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30
Q

What commercial reality factors are relevant to mediation?

A

Solutions more practical than courts but some remedies not available (ie. Injunctions)

31
Q

When can you withdraw from arbitration?

A

at any time

32
Q

Are arbitrators decisions enforceable?

A

Arbitrators decision binding on parties
Winning party can apply to high court under s66 Arbitration Act 1966 for permission to enforce arbitration award as if it were a court judgement

33
Q

When is litigation used?

A

if cant use ADR

34
Q

Is litigation flexible?

A

inflexible-courts control procedure decide what happens, inflexible solutions, not voluntaary

35
Q

Is litigation confidential?

A

Low-published=could be bad for reputation and image, more duty to disclose (can redact names for minors, really sensitive cases)

36
Q

What commercial reality factors are relevant for litigation?

A

inflexible solutions

37
Q

Can you withdraw from litigation?

A

Cant withdraw without paying costs

38
Q

Are litigation decisions enfoceable?

A

Yes, courts can impose enforceable solution

39
Q

Who are court managers?

A

Senior civil servant in charge of court office

40
Q

Who are ushers?

A

assist with smooth running of courts, inc. ensuring lists of cases dealt with efficiently

41
Q

Who are enforcement officers?

A

bailiffs and High Court Enforcement Officers serve court documents and enforce court orders and judgments

42
Q

What judges will deal with DR?

A

*District judges-deal with majority of interim applications and trials not exceeding £25k
*Circuit judges/high court judges for rest

43
Q

Why must time limits for bringing a claim be complied with?

A

Because otherwise, case will be statue barred and D has technical defence

44
Q

Limitation period for contract

A

6y from date of cause of action UNLESS diff limitation period in contract

45
Q

Limitation period for tort

A

6y from date of cause of action

46
Q

Limitation period for personal injury

A

3y from date of cause of action/knowledge of injured person

47
Q

How does the limitation period for PI differ for children?

A

3y from 18th bday (=will always expire on 21st bday)

48
Q

Limitation period for negligence where damage is latent at date of cause?

A

◊ 6y from date of cause
◊ OR 3y from date of knowledge (if later) (of injury significance, was attributable to act/omission, Ds identity)
◊ No later than 15y from date of negligent act/omission
UNLESS exceptional circumstances

49
Q

Who needs a litigation friend?

A

*Under 18s
*protected parties (person incapable of managing their own affairs bc of a mental disorder as defined by the Mental Capacity Act 2005)

50
Q

Requirements for a litigation friend?

A

Must be able to fairly and competently conduct proceedings on behalf of the party and have no adverse interest

51
Q

What are the types of claims (in relation to money)

A
  1. Specified claim-for fixed amount (ie. Debt owed)
  2. Unspecified claims (ie. Damages)
52
Q

How to figure out is a defendant is worth suing?

A
  • Search CH
  • Bankruptcy search of individual
  • Instructing inquiry agent (costs)
  • Internet search
53
Q

Purpose of damages in contract

A

Put claimant in position they would have been in if contract had been properly performed

54
Q

Purpose of damages in tort

A

Put claimant in position they would have been in if negligent act/nuisance hadn’t occurred

55
Q

Purpose of damages for misrepresentation

A

To put claimant back to the position they were in before the contract was entered into

56
Q

4

What types of claims have established pre action protocols?

A
  • Debt
  • Personal Injury
  • Professional negligence
  • Construction and engineering
57
Q

What should be done about Pre-action protocols if theres no established protocol for that type of claim?

A

Follow general guidance in: “Practice Direction and Pre- Action Protocols (PDPAC)”

58
Q

To whom does the established protocol for debt claims apply?

A

individual & sole trader - business (inc. sole traders/public bodies) debts (NOT business-business)

59
Q

What is the established protocol for debt claims?

A
  1. Potential C give full info on debt owed, inc an up- to- date statement of account with details of interest and charges, and how the debt can be paid
  2. Inc. standard Reply Form, Information Sheet and Financial Statement forms that are annexed to the protocol
  3. Individual has 30d to respond
60
Q

What is the established pre action protocol for professional negligence?

A
  1. C give preliminary notice to professional in writing
  2. Professional inform insurers and acknowledge notice within21d receipt
  3. C send letter of claim (full issues/full docs)
  4. Professional should acknowledge within 21d of receipt
  5. D investigates claim and sends Letter of Response and/or Letter of Settlement within 3mo
61
Q

Within what time should negotiations to resolve a professional negligence claim aim to be resolved?

A

6 month

62
Q

When should litigation be used

A

as a last resort

63
Q

General pre action guidance: what docs should parties exchange sufficient information to do?

A

(a) understand each other’s position
(b) decide how to proceed;
(c) try to settle the issues without proceedings
(d) consider a form of ADR to assist with settlement;
(e) support the efficient management of proceedings
(f) reduce costs of resolving dispute.

64
Q

What does the practice direction on pre action conduct and protocols say the parties should do?

A
  1. C sends LETTER BEFORE CLAIM inc concise details, facts summary, what C wants, key docs
  2. D sends LETTER OF RESPONSE within reasonable time (14d for straightforward claim/3mo max for complex) confirming if accepted, reasons, key docs, if counter claim
  3. C replies and both consider NEGOTIATION, ADR, APP. EXPERTS
  4. stocktake: before issuing proceedings consider positions, if can avoid and issues in dispute
65
Q

What are the sanctions with non compliance with the practice direction on pre action conduct and protocols that leads to unecessary proceedings/costs?

A

(a) party at fault pays some/all of opponent’s costs (perhaps on the penalty, indemnity basis);
(b) C is depraved of some/all interest on any damages
(c) D pays higher interest on any damages (up to 10% per annum above the base rate)

66
Q

General pre action guidance: what steps should be taken to identify/resolve/narrow issues?

A

Only reasonable and proportionate steps

67
Q

What is the consequence of making a false statement in a pre action protocol letter?

A

may be in contempt of court

68
Q

Can proceedings be conducted in welsh?

A

Yes if all parties/witnesses consent

69
Q

For international disputes, how is it determined which jurisdictions law will apply?

A

◊ Contract=should state (but UCTA1977 contain requirements that apply regardless of agreement to contrary)
◊No governing law chosen=default provisions come into play and parties dont have a choice, decided by court as preliminary matter

70
Q

Will an agreed contractual limitation period override the statutory limitation period for bringing a claim?

A

Yes, subject to UCTA 1977 (reasonablensess)

71
Q

What does a reference to ‘English law’ include?

A

England and Wales NOT Scotland and Northern Ireland

72
Q

For the sale of goods with an international element, which country will have jurisdiction?

A

the country where the goods were delivered, NOT despatched from

73
Q

What is the effect of Brexit on disputes with an international element?

A

For proceedings issued in English courts after 1 Jan 2021, the old jurisdictional rules of the EU arent valid and each country applies its own domestic rules to cases where the UK is involved

SQE 1 (46 decks)

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