DR Flashcards
What are forms of ADR?
1) Negotiation
2) Mediation
3) Arbitration
4) Mediation/Arbitration (Med-arb)
5) Early neutral Evaluation/Expert appraisal/ Expert Evaluation
6) Expert determination
7) Conciliation
What is mediation?
Mediation is a confidential process intended to facilitate the resolution of disputes through the medium of an impartial third party - the mediator.
Does the mediator have the power to bind the parties?
No
If the mediation does not end in an agreed resolution, can the content be made know to the court?
No, the content in the mediation will remain confidential
What is the procedure of meditation?
Each party (usually with legal representative) will be present in the same location but in different rooms.
The mediator will move between the rooms delivering settlement offers and guiding each party to reflect on those offers and the alternatives to reaching an agreement.
What is arbitration?
Arbitration is a process by which a dispute is resolved by an impartial adjudicator whose decision to the dispute will be final and binding.
What is the consequences of arbitration?
By agreeing to arbitrate disputes parties are agreeing to
1) oust the jurisdiction of the court to hear the matter
and
2) to give the jurisdiction to a different impartial party (the adjudicator) instead.
3) Long and formal process governed by rules and statute.
What stage does arbitration arise?
When negotiating a contract the parties may decide to include an arbitration clause in their agreement to cover disputes that arise in the future.
or
When a dispute has arisen, parties can choose to deal with it by way of arbitration.
What is the advantage to arbituation?
a) privacy
b) easier enforcement in certain jurisdiction
c) the ability to choose specialist to determine the dispute
d) flexibility
What is med-arb?
Is a process whereby parties agree that, initially they will try to resolve any dispute by mediation.
In the event that this does not result in satisfactory resolution of the matter, the matter will move to arbitration pursuant to which a binding determination will be made.
Which types of ADR are binding?
Expert determination
and
Arbitration
Which types of ADR are not binding?
Negotiation
Mediation
Early neutral evaluation/expert appraisal/expert evaluation provide
and
Conciliation
What are the potential advantages for all ADR?
Better relationship between parties
Saves time
-Less disruption
-Range of outcomes
-Parties in control
Less expensive
-Privacy/Confidentiality
Outcomes reflect risk: Only for non-binding ADR
Parties more involved.
*Whether these advantages applies depend on the case of facts and the particular form of ADR used.
the question of whether to arbitrate or not arises at two key stages?
o When negotiating a contract the parties may decide to include an arbitration clause in their agreement to cover disputes that arise in the future; or
o When a dispute has arisen, the parties can choose to deal with it by way of arbitration (ie even where there is no arbitration agreement in their underlying contract).
What should be considered when a dispute has an international dimension?
1) Do the courts of England & Wales have jurisdiction to determine the Claim?
2) Which Country’s laws will apply to determine a dispute?
3) Will it be necessary to enforce the judgment abroad and how will this be done?
Does the court expect parties to explore ADR?
The court expects the parties to act reasonably in relation to considering and engaging in ADR, and can impose sanctions if they do not.
What is the consequences of not engaging in ADR?
Courts can impose sanctions
What forms of ADR allow the benefit for outcomes that reflect risk?
In non-binding forms of ADR the parties can agree a settlement that reflects the risk to each
*In court proceedings, the judge cannot decide the claim in such way . The judge must decide each issue and then give a judgement accordingly, and cannot discount the judgement sum to take into account the uncertainty that is the right judgement.
Which types of cases are not suitable for ADR?
Very few. In practice, most concerns about the suitability of a case for ADR can be overcome if the ADR is appropriately chosen and timed.
What is the role of lawyer in ADR?
- Ensure the client is fully aware of the options of ADR
- Help their client to pursue any ADR which it wishes to pursue.
- Act within the authority to settle granted by the client in any settlement discussions. it generally prudent to involve the client directly in the final approval of any settlement agreement.
Can arbitration be considered after court proceedings have been commenced?
No
What factors suggest earlier ADR is better? and why?
Cost saving: the earlier ADR, the greater the cost saving in the event of success.
Better relationship and info: Even if ADR does not lead to settlement, it can improve the relationship between the parties and produce useful info.
What factors suggest later ADR is better? and why?
- Parties will better understand each other’s case.
-Parties will better understand the evidence that each party has available.
- Too early = may have incurred costs when the dispute is not genuine and would not have been perused anyways.
Does the Pre-action protocol and the practice direction on pre-action conduct require the parties to consider ADR?
Yes
How does the Precedent H have implication for when ADR should be considered?
(Cost budget ) Requires the inclusion of some elements relating to negotiation and advising settlement
Which CPR contain various provision which have implication for when ADR should be at least considered?
- Various Pre-action protocol and the practice direction on pre-action conduct.
- Precedent H (Cost Budget)
-Direction Questionaries
-Case management conference
How does the Direction questionnaires have implication for when ADR should be considered?
Requires legal representatives to confirm that they have explained to clients the need to try to settle, the settlement options and possible cost sanctions.
How does the case management conference have implication for when ADR should be considered?
The court is likely to want to know what steps the parties have taken to explore alternative dispute resolution.
The court can give direction that are aimed at encouraging and facilitating ADR, if appropriate.
How does the court encourage the parties to engage in ADR?
a) Provide info about ADR
b) Courts discretion on cost
c) Court can order a stay in order for the parties to explore ADR
d) Court can direct the parties to consider ADR and require an explanation of the parties’ thinking in that regard
c) The court can reinforce the direction (for the parties to consider ADR) by requiring to produce a witness statement to make a record of the situation for the courts to consider (for example)
Can a court compel a party to engage in ADR?
No
What is a factor the court will consider when making a cost order?
The conduct of the parties and compliance with pre-action protocol.
At what stage is the conduct of the parties considered by the court when making a cost order?
Conduct before, as well as during proceedings
Why can’t the content of a mediation be known to the court?
It’s a type of privilege (without prejudice communication) = Cannot be inspected
What will the court consider if the party refused to engage in ADR?
If the refusal was reasonable by looking at all the circumstances of the case.
What is the consequence if the court considers that the party’s refusal to engage in ADR is unreasonable?
It will impose a cost penalty
What circumstances does the court consider if the party refused to engage in ADR?
1) The nature of the dispute (How suitable it is for ADR)
2) The merits of the case (A refusal to engage in ADR may be more justifiable if the party justifiably believes it to be strong).
3) The extent to which other settlement methods have been attempted
4) Whether the cost of ADR would be disproportionately high (Note: that free fixed-fee mediation are potentially available in relation to low value claims which might make the costs proportionate even for such claims)
5) Whether any delay in setting up and attending the ADR would have been prejudicial (example: close to trial)
6) Whether ADR has reasonable prospect of success
*The court does NOT take the same approach when considering what the consequences should be for a party who has simply failed to suggest ADR.
Will the court refuse to award costs to a successful party simply because it did not positively suggest ADR?
No
What is the impact if a party is silent in the face of an offer to engage in ADR?
This is most likely to be considered unreasonable and to be sanctioned in costs (unless the parties are already engaged in a form of ADR)
What is the procedure for a party upon a receipt of an offer to engage in ADR?
1) Consider with their legal advisor the merits of the offer
2) Respond promptly, in writing, setting out reasons for its decision, and noting the principles
3) if they do not wish to engage in ADR, explain in what different circumstance it would agree to ADR.
4) Make that letter with ‘open’ or ‘without prejudice save as to costs’ and
5) Consider making a separate not of any reasons for refusal that is unwilling to express to the opponent at that time, in a form which can be later shown to the court if necessary.
What is the question concerned with ‘Do the courts of England & Wales have jurisdiction to determine the Claim?’
Whether English/Wales courts will decide a dispute or is it a dispute that should not be resolved in some other court/tribunal
What is the question concerned with Which Country’s laws will apply to determine a dispute?
Which laws in English and Wales will apply to decide the dispute, assuming they have jurisdiction
Why is it important to know which court(s) have jurisdiction?
Because:
1) If you commence proceedings in a court which does not have jurisdiction, the court might refuse to decide the dispute, and this can lead to time and money being wasted
and
2) It is possible that more than one court has jurisdiction to determine a dispute. You might then be able to choose whichever is preferable.
Can the Court of England and Wales determine disputes over matters automatically, that take place outside England and Wales or that concerns nationals of other countries?
No,
You need to consider whether there are additional criteria that must be satisfied to establish that the courts of England and Wales have jurisdiction.
What are key considerations that should be addressed to ascertain whether the parties have effectively given jurisdiction to the courts of England and Wales?
1) Is the matter a civil or commercial matter?
2) Is it an excluded matter?
3) Does the clause give jurisdiction to a Contracting State?
4) Is jurisdiction given exclusively?
5) Is the agreement concluded/documented/ evidenced in writing?
6) Is the agreement an ‘asymmetric’ one?
Which disputes are covered in the Hague Convention?
Civil and commercial matter
Which disputes are not covered in the Hague Convention?
Public law and criminal disputes
What certain types of disputes from civil and commercial matters are excluded from the Hague Convention?
Consumer and Employment matters
Is jurisdiction given exclusively for a clause that states ‘ The Courts of England and Wales will have exclusive jurisdiction to determine any dispute arising out of this contract’?
Yes
The Hague Convention applies
Would the Hague Convention apply to if there is no clause which give exclusive jurisdiction to a particular country?
No, the Hague convention only applies to clauses which gives exclusive jurisdiction to a particular country
What form does the jurisdiction agreement should be for the Hague Convention to apply?
Only applies if the jurisdiction agreement is in writing or evidenced/ documented in writing
What is an ‘asymmetric’ agreement?
Is an agreement that provides that one party can commence proceedings only in a specific named country, but other party can commence proceedings in that country or any other which would have jurisdiction under any other relevant rules.
(Same rights are not given to each party)
Would an ‘asymmetric’ agreement fall within the Hague convention?
Due to the way the Hague Convention is worded, it is unclear whether such a clause would fall within the Hague Convention or not.
What is the consequence of the Hague Convention, in terms of jurisdiction?
1) The court indicated as having jurisdiction will have jurisdiction, and cannot decline it on the basis that the dispute should be decided in another country and
2) Any other court must refuse to hear the proceedings
When will the Courts of England and Wales have jurisdiction under the common law?
If:
1) It is possible to serve the proceedings on the defendant in the jurisdiction (in England and Wales) - D is ‘present’ in jurisdiction
or
2) The Court gives permission to serve the proceeding on D outside of the jurisdiction
or
3) The Courts of England and Wales are given jurisdiction by a clause in a contract
Would a foreign D be subject to the jurisdiction of the Courts of England and Wales if proceedings are served on D whilst D is within England and Wales?
Yes
A D will (in principle) be subject to the jurisdiction of the courts in England and Wales if proceeding are served on D whilst D is within the jurisdiction.
If a subject matter of proceedings is based in/ took place in another jurisdiction, would D be subjected into the jurisdiction of the Courts of England and Wales if proceedings are served on D whilst D is within England and Wales?
Yes
A D will (in principle) be subject to the jurisdiction of the courts in England and Wales if proceeding are served on D whilst D is within the jurisdiction.
What are the requirements in order to obtain permission to serve the proceedings on D outside of the Jurisdiction?
1) C needs to establish one of the grounds in 6B PD 3.1
2) The claim must have reasonable prospect of success
3) England and Wales must be the proper place in which bring the claim
*If these matters are established, then the court may grant permission for service outside of the jurisdiction
If a party cannot serve proceedings within the jurisdiction, can the party apply to serve the proceedings on D outside of the jurisdiction?
Yes,
if the courts grants permission for this and proceedings are duly served outside of the jurisdiction, then this gives the courts of England and Wales (in principle) the jurisdiction to determine the claim.
If the courts grants permission for proceeding on D outside the jurisdiction and proceedings are duly served outside of jurisdiction, Does this give the courts of England and Wales the jurisdiction to determine the claim?
Yes (in principle)
What are the grounds that C needs to establish for application for permission to serve outside of the jurisdiction can be based?
6B PD 3.1:
A claim is made for a remedy against a person domiciled within the jurisdiction (1).
A claim is made in respect of a contract where the contract (6) –
(a) was made within the jurisdiction;
(c) is governed by English law; or
(d) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.
A claim is made in respect of a breach of contract committed within the jurisdiction (7).
A claim is made in tort where (9)
(a) damage was sustained, or will be sustained, within the jurisdiction; or
(b) damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.
How is a reasonable prospect of success established for an application for permission to serve outside of the jurisdiction?
This is a relatively low threshold and has been equated to the prospect of success needed to resist an application for summary judgment: De Molestina v Ponton [2002] 1 Lloyd’s Rep 271.
Summary Judgement:
no real prospect means: the position is fanciful, imaginary or false.
What constitutes as England or Wales are the ‘proper place’ to bring a claim?
If it is the natural place to bring the proceedings.
Examples:
- Evidential matter (witnesses are based there)
- English law applies
and/or
- D is normally resident in England/Wales
If it was established that England or Wales is not the natural place, but rather another jurisdiction is the natural place, Can the Courts of England and Wales still have jurisdiction to determine the claim?
Yes
If justice nonetheless requires the claim be tired in England
Example:
- There is a risk of improper government interference in a different jurisdiction.
If an agreement of jurisdiction for England and/or Wales, is concluded before 1st of October 2015. Does England and/ or Wales have jurisdiction?
Yes,
The claimant can serve the claim form on a defendant outside the jurisdiction without the court’s permission where a contract contains a term to the effect that the courts of England and/or Wales shall have jurisdiction to determine that claim (CPR 6.33(2B)).
This provides protection in the same area as the Hague Convention (addressed in a different element). However, the Hague Convention only applies to exclusive choice of court agreements concluded on or after 1 October 2015. If the agreement was concluded before this date, or does not give jurisdiction to the courts of England and Wales exclusively, then the Hague Convention does not apply, and this rule provides an alternative route to establishing jurisdiction (CPR 6.33(2B)).
What are the Contracting States?
- UK
- All EU members states
-Mexico
-Singapore
and
-Montenegro
Will the Hague Convention apply, If the clause indicates that the courts of a particular state in the USA has jurisdiction?
No
As the USA is not a contracting state
What is the period of service, where the claim form is to be served outside the jurisdiction?
6 months of the date of issue
Is it necessary to seek the court’s permission to serve proceedings out of the jurisdiction if the Courts of England and Wales have jurisdiction? and why?
No
because:
a) The Hague Convention gives the court jurisdiction
or
b) a contract contains a term to the effect that the Courts of England and/or Wales have jurisdiction to determine the claim
What should be considered when serving a claim out of the jurisdiction?
1) Whether permission from the court to do so is needed
and
2) Which methods of service are possible
If C is seeking to serve an English claim form aboard without permission which form should file is need when it issues and files its claim form?
Form N510
What is the procedure, if C is seeking to serve an English claim form aboard without permission?
C must file:
- Form N510 when it issues and files its claim form
What is Form N510 ?
Confirms to the court the basis upon which it has jurisdiction over a foreign -domiciled D in circumstances where the courts permission has not been sought to serve the claim form abroad.
What is the procedure, If C is seeking to serve an English claim form aboard with permission?
C will have to make an interim application to court (usual rules applies), by filing an application notice in Form N244, to ask the court to allow it to serve the claim form on D.
What are the methods of service when serving outside the UK?
- Service in accordance with an agreed regulation, convention or treaty. Any regulation, convention or treaty in relation to service referred to in this element will only apply to whichever countries have contracted into it, along with the UK.
- Service through the government of the destination country (if that government is willing to do this).
- Service by any method permitted by the law of the destination country. In practice, it is often preferred to take local advice in the destination country and engage a local agent to effect service by a method which is permitted there.
Can a court order authorise or require any person do anything in the destination country which against the law of that country?
No
What is the extended periods for filing an acknowledgement of service when the claim form/ particulars of claim have been served out of jurisdiction?
The amount of ‘extra time’ allowed will vary depending on which country is involved
What is the extended periods for filing a defence when the claim form/ particulars of claim have been served out of jurisdiction?
The amount of ‘extra time’ allowed will vary depending on which country is involved
What is the method to serve proceedings on D, who is in the jurisdiction?
By a variety of methods
Including personal service (actually leaving the proceedings with an individual defendant)
Can proceeding be personally served on an individual defendant in England and Wales even if they live in another jurisdiction and are only very briefly in England and Wales?
Yes
Can a company not incorporate in England and Wales be served at any business of the company within England and Wales?
Yes
If a D appoints a solicitor in England and Wales to accept service on its behalf, can the proceeding then be served on that solicitor within the jurisdiction?
Yes
If the contract contains a term to the effect that the court of England and/ or Wales shall have jurisdiction (which is not exclusive) to determine that claim, can a party serve proceeding outside the jurisdiction without the courts permission ?
Yes
If it is not possible to serve effectively through any of the usual method, within the jurisdiction, what can the claimant do?
An application to the court for an order:
- An order for alternative service
or
- an order dispensing with service
When can the court permit service by an alternative method?
If there is good reason to do so
i.e where the other available methods of service would be ineffective or impossible
What is the procedure to obtain an order for an alternative service?
- An application must be made to the court
- Setting out why service in accordance with the methods listed in the CPR are not possible or why attempts to serve in accordance with these method have been unsuccessful
+
State the alternative method proposed.
What are examples of alternative service method?
1) Serving on solicitors acting for a party where the solicitor has not been authorised to accept service
and
2) placing an advert in a newspaper notifying D that the proceedings have commenced..
When cannot an alternative service be used?
1) retrospectively
and
2) to remedy irregular service
Can an alternative service be used retrospectively?
No
Can an alternative service be used to remedy irregular service?
No
When can the court dispense with service of a document?
When the other side is already aware of the document.
- Courts discretions applies
If C wished to make an amendment to its particulars of claim and D agreed to that amendment being and made an application to court to amend the document. Can the court dispense with service?
Yes
If the court agreed to the amendment being made, it might dispense with service.
i.e: order that C does not have to serve the document on D, bec D is already aware.
How is contractual disputes governed for claims with international dimension?
Rome I
Are parties free to choose which country’s law will apply in contractual disputes ?
The parties are free to choose which country’s law will apply
How can parties choose which country’s law will apply for contractual disputes?
1) Having a choice of law clause
or
2) demonstrated by the circumstances of the case.
What is a choice of law clause?
A clause expressly stating which country’s law will apply in the contract
When can parties choose which country’s law apply for contractual disputes?
The choice can be made at any time
(before and after the dispute has arisen)
If the parties has chosen which law should apply for contractual disputes, which country’s law will apply?
The chosen law that the parties chose.
If the parties did not choose which law should apply in contractual disputes, what would be the applicable law?
In the absence of choice, you should consider Article 4 (1) (a) to (h), which set out various types of contact and laws that will apply
What are cases specified in Article 4(1) (a) to (h) in Rome I? and what is the applicable law?
- Sales of goods: Seller’s habitual residence
- Provisions of Service: Service provider’s habitual residence
- Contract relating to land: where the land is situated
-Distribution Contract: Distributor’s habitual residence
If the parties did not choose which law should apply, what is the applicable law for a contract for the sales of good?
Seller’s habitual residence
If the parties did not choose which law should apply, what is the applicable law for a contract for the provisions of service?
Service provider’s habitual residence
If the parties did not choose which law should apply, what is the applicable law for a contract relating to land?
Where the land is situated
If the parties did not choose which law should apply, what is the applicable law for a contract for distribution?
Distributor’s habitual residence
What is habitual residence of a company?
Is where its central admission is
What is the habitual residence for a natural person acting in the course of business?
It is where that person’s principal place of business is.
If the parties did not choose which law should apply, and the contract does not fall into the categories in article 4(1)(a) to (h), which law is applicable for contractual disputes?
Article 4 (2):
The applicable law is the law of the country where the party required to effect characteristic performance of the contract has its habitual residence.
(Where the characteristic performer has its habitual service = party doing somethings residence)
If the applicable law has been determined for a contractual dispute, can the court apply a different country’s law?
Yes,
If the contract is manifestly more closely connected with that other country
What are the steps to determine which applicable law applies in contractual disputes?
Step 1: Does Rome I apply? Yes
Step 2: Have the parties chosen which law should apply?
Step 2(a): Yes = the country’s law will apply
Step 2(b): No = Step 3
Step 3: Does the contract relate to one of the case specified in Article 4(1) (a) to (h)?
Step 3 (a): Yes = those articles apply
Step 3 (b): No = the country where the ‘characteristic performer’ has its habitual residence
Step 4: Is the contract manifestly more closely connected with another country?
Can conclusions reached via the choice provision be displaced for contractual disputes?
Yes
If the contract is manifestly more closely connected with another country
Does Rome I apply to beaches of contract on or after 17 of December 2009?
No
Contract needs to be entered by 17 of December 2009
What are contracts that are included in Rome I special provisions?
1) Contracts of carriage
2) Consumer Contracts
3) Employment Contracts
4)Insurance Contracts
How is tortious disputes governed for claims with international dimension?
Rome II
Does Rome II apply to events giving rise to damage which occurred before 10 January 2009?
No
Do Rome II apply to proceedings which occurred on 10th of January 2009?
No
Only applies to events giving rise to damage which occurred on or after 10th of January 2009
What are special provisions that are included in Rome II ?
1) Product liability
2) Unfair Competition
3) Environmental damage
4) Infringement of intellectual property
and
5) Industrial action
Are parties free to choose which country’s law will apply in tortious disputes ?
The parties are free to choose which country’s law will apply
How can parties choose which country’s law will apply for tortious disputes?
1) Having an express contractual term between parties
or
2) demonstrated by the circumstances of the case.
If the agreement for a tortious dispute is entered into before the event giving rise to the damage. What will be the applicable law?
The choice of law will be effective if both parties are pursuing a commercial activity and freely negotiated the choice of law
If the parties validly chosen law should apply. which law will be applicable?
The chosen law of the country will apply.
If the parties did not validly choose which law should apply in tortious disputes, what would be the applicable law?
In the absence of choice, if the claimant and defendant both reside in the same country then that country’s law will apply, even if the dame happened in a different country
If an event arise resulting tortious damage in a different country, but the parties both reside in the same country and the parties have not chosen which law will apply. what is the applicable law?
The country both parties reside in
Where there is no valid choice and C and D do not reside in the same country, what is the applicable law in a tort claim?
The applicable law is: the law of the country where the damages occurs
If the applicable law has been determined for a tortious dispute, can the court apply a different country’s law?
Yes,
The court can apply a different law if the tort is manifestly more closely connected with that other country
Can conclusions reached via the choice provision be displaced for tortious disputes?
Yes,
The court can apply a different law if the tort is manifestly more closely connected with that other country
What are the steps to determine which applicable law applies in tortious disputes?
Step 1: Does Rome II apply? Yes
Step 2: Have the parties validly chosen which law should apply?
Step 2 (a): Yes = The country’s law will apply
Step 2 (b): No = Step 3
Step 3: Do the claimant and defendant habitually reside in the same country?
Step 3 (a): Yes = That country’s law apply
Step 3 (b): No = apply the law of the country in which damages occurs
Step 4: Is the claim manifestly more closely connected with another country?
Can the issue of choice of law and jurisdiction arise within the UK?
Yes
Whether English or Scottish courts or Northern Irish have jurisdiction
or
Whether English/Welsh or Scottish law or Northern Irish law applies
How is situation in relations to conflict of law decided in countries within the UK?
Rome I: Contractual disputes
Rome II: Tortious Disputes
In regards to jurisdiction with in the UK, what is exclusive jurisdiction?
The Civil Jurisdiction and Judgments Act 1982:
In relation to some particular types of disputes, one part of the UK, and only that part can have jurisdiction
In regards to jurisdiction with in the UK, what is a type of dispute that has exclusive jurisdiction?
Disputes about land
*Land must be heard in the part of the UK where the land is.
In regards to jurisdiction with in the UK, what is jurisdiction agreement?
Where parties agree that a particular part of the UK will have jurisdiction, then that part will have jurisdiction
In regards to jurisdiction with in the UK, what is submission?
If a party submits to the jurisdiction of a court in the UK.
For example: By filing a defence rather than contesting jurisdiction, then that court will have jurisdiction
In regards to jurisdiction with in the UK, can submission override exclusive jurisdiction rules?
No
In regards to jurisdiction with in the UK, if submission, exclusive jurisdiction and jurisdiction agreement do not apply, how is jurisdiction decided?
Basic Rule:
A person domiciled in a part of the UK should be sued in the courts of that part.
(Sue where D is domiciled)
What constitutes a person is domiciled in part of the UK?
1) If they are residents there
and
2) the nature and circumstance of their residences indicate they have a substantial connection with that part.
What constitutes a the domicile of a company in the UK?
A company is domiciled:
1) Where its ‘seat’ is. a A company will generally have its seat where it has its registered office
or
2) If none, where it was incorporated
What are the circumstances in which a person can be sued in parts of the UK, in which they are not domiciled in?
1) In matters relating to a contract, in the courts for the place of performance of the obligation in question
2) In matters relating to tort, in the courts for the place where the harmful event occurred or may occur
3) As regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated
4) where he is one of the numbers of defendants, in the courts for the place where any of them is domiciled, provided the claims are so closely connected that is expedient to hear and determine them together
5) on a counter-claim arising from the same contract or facts on which the original claim was based, on the court which the original claim is pending
Why might a receipt of court proceedings may challenge the English/Welsh court’s jurisdiction to hear a dispute?
1) C alleges that the court has jurisdiction pursuant to a convention such as the Hague Convention on Choice of Court Agreements but D disputes this
2) C has obtained permission to serve proceedings out of the jurisdiction but D considers that none of the gateways for obtaining such permission are satisfied and/or the Courts of England and Wales are not the proper place for the claim to be heard.
3)The proceedings have been served effectively on D within the jurisdiction, but there is another more appropriate forum.
If the court has determined that England and Wales is the proper place for a claim to be heard when granting permission.
Can the defendant from, upon receipt of the proceeding, seek to argue that England and Wales is not the proper place for the claim to be heard?
Yes
The fact that the court has determined that England and Wales is the proper place for the claim to be heard when granting permission does not prevent the defendant from, upon receipt of proceedings, seeking to argue that to argue that England and Wales is not the proper place for the claim to be heard.
What does the procedure involve for disputing the court’s jurisdiction??
- The defendant must file an acknowledgment of service (there is a box on the acknowledgement of service to indicate that the defendant intends to consent jurisdiction.
- The defendant must then apply within 14 days after filing the acknowledgment of service, disputing the court’s jurisdiction. That application must be supported by evidence.
What is the time limit, after the defendant filed the acknowledgment of service to apply to dispute the courts jurisdiction?
Within 14 days after filing the acknowledgement of service
If a party submits to the jurisdiction of the Courts of England and Wales. can the party later dispute that jurisdiction?
They can NOT
What is the effect of a party submitting to the court’s jurisdiction?
The court’s jurisdiction is established
How can a party submit to the court’s jurisdiction?
By engaging with the proceeding beyond filing an acknowledgment of service.
How can a party avoid submitting to the court’s jurisdiction?
A defendant served with proceeding must:
1) Not take any steps to engage with the proceedings beyond filing an acknowledgment of service
and then
2) apply to the court to challenging its jurisdiction (within 14 days of filing an acknowledgment of service).
When is permission not needed to serve outside of jurisdiction?
- Presence in the jurisdiction – permission is not needed to serve out of the jurisdiction (claim is not being served out of the jurisdiction), service is via usual rules that apply to ‘domestic’ disputes
E.g. could have a registered office - Hague Convention on Choice of Court Agreements - permission is not needed to serve out of the jurisdiction, comply with the rules for service out of the jurisdiction eg service in a manner permitted by target country
- Contractual provision giving jurisdiction - permission is not needed to serve out of the jurisdiction, comply with the rules for service out of the jurisdiction eg service in a manner permitted by target country
When is permission needed to serve within jurisdiction?
- Common law – permission is needed to serve out of the jurisdiction, comply with the rules for service out of the jurisdiction eg service in a manner permitted by target country
Would be a default, interim, without notice application - As soon as practicable but no less than 3 days
There would be an interim application for costs after this
How to avoid submitting to the court’s jurisdiction?
- To avoid submitting to the court’s jurisdiction, a defendant served with proceedings must not take any steps to engage with the proceedings beyond filing an acknowledgement of service and then applying to court to challenge its jurisdiction, as set out earlier in this element. The party must not, for example, file a defence.
Purpose of summary judgement?
to enable the court to dispose of claims or issues without the need for a full trial
Difference between summary judgement and strike out?
- The court can strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (CPR 3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings (CPR 3.4(2)(b))(there are also other grounds for strike out). The court may give summary judgment against a claimant or defendant where that party has no real prospect of succeeding on their claim or defence (CPR 24.2).
Grounds for summary judgement?
- A:
- The claimant has no real prospect of succeeding on the claim or issue;
o OR - The defendant has no real prospect of successfully defending the claim or issue.
- And B:
- There is no other compelling reason why the case or issue should be disposed of at trial.
What does ‘no real prospect’ mean?
It means the position is fanciful, imaginary or false.
- To defeat the application, the respondent does not have to show that its case will probably succeed; just some chance even if it is improbable. The word real means more than merely arguable.
Who can apply for summary judgment and when?
- Claimant- After the defendant has filed an acknowledgement of service or defence (or earlier with the court’s permission)(CPR 24.4)
- If the claimant fails to comply with a relevant pre-action protocol, the application for summary judgment by the claimant will not normally be considered before the defence has been filed or time for doing so has expired (24 PD 2(6)).
- Defendant - Can apply anytime after proceedings have commenced.
- Court - Can fix hearing of its own initiative (CPR 1.4(2)(c) and CPR 3.3).
- Ideally, the claimant or defendant should apply for summary judgment either before or at the same time as filing the Directions Questionnaires to avoid incurring unnecessary costs (26 PD 5.3(1)). If the application is made on filing Directions Questionnaires, the court will delay allocating the matter to a track until after the summary judgment hearing.
Effect of summary judgement?
create a pause in the proceedings while the application is being decided so that:
- - If the claimant applies for summary judgment before the defendant has served a defence, the time for the defendant to file a defence is extended until after the hearing (CPR 24.4(2)).
- - If the defendant applies for summary judgment, the defendant does not have to file either an acknowledgement of service or a defence until after the summary judgment hearing.
How to make an application for summary judgment
- Issue:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Fee
- Service (at least 14 days before the hearing):
- Application notice (form N244)
- Supporting evidence
- Draft order
- Notice of hearing date
- Further evidence:
- Respondent files at court and serves on the applicant evidence at least 7 days before hearing
- Applicant files at court and serves on the respondent evidence in reply at least 3 days before hearing
- Both parties file and exchange statements of costs not less than 24 hours before hearing.
What must the application notice for summary judgement include?
Include a statement that it is an application for summary judgment under Part 24; and
- - Direct the respondent’s attention to the CPR which require the respondent to file and serve any evidence at least seven days before the summary judgment hearing (24PD 2)
Potential orders at the summary judgment hearing?
- Dismissal of the application
- The application fails. The issues must continue to trial. The court will give directions to take the claim forward.
- Dismissal of the claim
- If the defendant applies for summary judgment and succeeds, the claim is dismissed. The defendant has ‘won’.
- Judgment on the claim
- If the claimant applies for summary judgment and succeeds, then judgment is entered for the claimant: the claimant has ‘won’.
- Conditional order
- The judge has decided that the respondent may succeed but it is improbable that it will do so: the court will refuse summary judgment and allow the respondent to continue only subject to conditions ordered by the court, such as paying a sum of money into court.
Examples of compelling reasons for summary judgement?
- Defendant needs more time to investigate
- Expert evidence is required
- Multi-party litigation
- Scrutiny of key documents is required
- Defendant has a right to trial by jury eg fraud
What is an interim payment?
An interim payment is a payment on account of damages, debt or other sum which a defendant may be held liable to pay to a claimant.
Interim payment conditions?
- The court will only make an order where any of the following conditions (requirements) are satisfied:
- The defendant has admitted liability to pay damages (or some other sum of money) to the claimant.
- The claimant has obtained judgment against that defendant for damages to be assessed (or for a sum of money other than costs) to be assessed.
- It is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money against the defendant from whom he is seeking an order for an interim payment, whether or not that defendant is the only defendant or one of a number of defendants to the claim.
Evidence required for summary judgement?
- The evidence supporting an application for summary judgment must address the grounds set out above.
- The application notice or supporting evidence (usually a witness statement) must also:
- Identify concisely any point of law or provision in a document on which the applicant relies; and
- State the application is made because the applicant believes that on the evidence the respondent has no real prospect of success and knows of no other compelling reason why the claim / issue should be disposed of at trial.
Interim payment evidence?
- The applicant must provide evidence alongside its application. The evidence must deal with the following (25B PD 2.1):
- The reasons for believing that the conditions for making an interim payment are satisfied;
- The sum of money for which final judgment is likely to be given;
- The sum of money sought by way of an interim payment;
- The items or matters in respect of which the interim payment is sought;
- Any other relevant matters;
- In claims for personal injuries, details of special damages and past and future loss; and
- In claims under the Fatal Accidents Act 1976, details of the person(s) on whose behalf the claim is made and the nature of the claim.
- Any documents in support of the application should be exhibited, including, in personal injuries claims, the medical report (25B PD 2.1).
Interim payment procedure?
- A claimant seeking an interim payment would make a request for a voluntary payment from the defendant first. If the defendant does not agree, for example if it is defending the claim, the claimant would make an application to the court for an interim payment (CPR 25.7).
- Although the claimant can make a request to the defendant for a voluntary interim payment at any stage in the proceedings (including pre-action), the claimant cannot apply to the court for an interim payment before the end of the period for the defendant filing an acknowledgment of service (CPR 25.6(1)).
- The claimant can make more than one application for an interim payment order.
- If the claimant applies for an interim payment, then the normal rules relating to interim applications apply (see the element relating to interim applications) subject to modifications / additional requirements set out on the following pages. On the following page the text struck through, in red, shows the ‘normal’ rules.
- The court must not make an interim payment of more than a reasonable proportion of the likely amount of the final judgment, taking into account any contributory negligence, set-off or counterclaim – (CPR 25.7). It may order payment in instalments.
How to make an application for summary judgment?
- Issue:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Fee
- Service (at least 14 days before the hearing):
- Application notice (form N244)
- Supporting evidence
- Draft order
- Notice of hearing date
- Further evidence:
- Respondent files at court and serves on the applicant evidence at least 7 days before hearing
- Applicant files at court and serves on the respondent evidence in reply at least 3 days before hearing
- Both parties file and exchange statements of costs not less than 24 hours before hearing.
- Hearing
Do interim payments affect the trial outcomes?
- Unless the defendant agrees, an interim payment made by a defendant in the course of the proceedings (whether voluntarily or by court order) will not be disclosed to the trial judge until all questions of liability and quantum have been decided (CPR 25.9).
What do interim injunctions do?
An interim injunction requires a party to do (mandatory) or to refrain from (prohibitory) an act on a temporary basis, usually until trial.
- An interim injunction is a temporary measure taken at an early stage in the proceedings (including pre-action) before trial and before any final decision on the merits of either party’s case to restrain the respondent from causing irreparable or immeasurable damage to the applicant by continuing conduct or ceasing conduct that has led to the dispute. It is usually made in circumstances of urgency and lasts until trial or further order.
What type of remedy is an injunction?
equitable and a discretionary remedy
Conditions for granting an interim injunction?
Step 1: is there a serious question to be tried?
- - Step 2: would damages be an adequate remedy for the applicant and can the respondent afford to pay? If not, would damages be an adequate remedy for the respondent if it later transpires the injunction was wrongly granted and can the applicant afford to pay?
- - Step 3: where does the balance of convenience lie?
What is a perpetual injunction?
final injunction (usually made at trial) that continues with no limitation of time
Quia timet injunctions?
Allow both prohibitory and mandatory injunctions where a wrong has been threatened but not yet committed
When may an interim injunction be granted?
where it is just and convenient
Equitable principles that apply to interim injunctions?
- An injunction will not be obtained when it would serve no practical purpose;
- The court might refuse to grant an injunction if the applicant has not come to court with ‘clean hands’
- Excessive delay may lead to a refusal of the application.
What must an application for an interim judgement be supported by?
by written evidence setting out the facts to justify the relief sought
if the application is made without notice, the evidence must state the reason why notice has not been given
Additional procedural applications for interim injunctions?
Cross undertaking in damages
* - Without notice safeguards
* - Applications before a claim is issued
Cross undertaking in damages?
- A court will often decide to grant an interim injunction only if the applicant offers an cross-undertaking to pay damages to the respondent for any loss sustained by reason of the injunction
Without notice safeguards?
If the application is made without notice and the injunction is granted, it will be granted initially for a limited period only and the court will fix a second hearing called the ‘return date’. The respondent will be given notice of that hearing and the opportunity to attend it to make representations, and at that second hearing, the court can make the following orders:
- - Maintain order (to keep the injunction in place until the trial of the substantive matter).
- - Discharge the injunction vary the terms of the injunction.
- - Enforce the applicant’s undertaking in damages if it transpires that the injunction should not have been granted.
- - Accept an undertaking by the respondent not to do the acts in question, in place of the injunction.
- In the case of a without notice application, the applicant must make full and frank disclosure of all matters of fact or law relevant to the application – including those which are or may be adverse to the applicant
- The applicant’s legal representatives must prepare a full note of the hearing as soon as possible and this should also be served on the respondent (and any other party affected by the order) without delay. The full note of the hearing ensures the respondent knows what case they have to meet at the next, with notice, hearing.
Interim applications in cases of exceptional urgency?
- In cases of exceptional urgency, not only can a party apply for an interim injunction without notice but a party can apply before a claim form has even been issued.
When does the court grant interim remedy before a claim has been issued?
if the matter is (CPR 25.2(2)(b)):
- - Urgent; or
- - It is otherwise desirable to do so in the interests of justice.
- In these circumstances, the applicant must undertake to the court to issue a claim form immediately.
Who can make interim applications?
- Interim applications can be made by any party.
When should an interim application be made?
as soon as it becomes apparent that it is necessary or desirable to make an application, the party should apply
Obligation for interim applications?
- Parties are under a specific obligation to ‘bunch’ their interim applications
Procedure for making interim applications?
- The process of making an application begins by the applicant filing an application notice (Form N244) at court. The application notice states (CPR 23.6):
- Who is making the application
- What order the applicant wants
- Why the applicant is asking for that order
- What information the applicant relies on in support of the application.
- A court fee is payable to issue the application notice.
- The application should be made to the court in which the main claim is presently being dealt with or, in the case of pre-action applications, is likely to be dealt with (CPR 23.2).
Evidence that can be attached to interim applications?
- In the application notice itself (Part C, in which case the statement of truth must also be completed (23A PD 9.7))
- By referring to the existing statements of case
- In a witness statement (or, if required, affidavit).
Service of interim application?
- The application notice, note from the court indicating the date and time of the hearing, evidence and draft order must be served on the other party after the application has been issued by the court
- Service must be effected as soon as practicable after the application is filed and not less than three clear days before the application is to be heard
Summary of procedure for interim application?
- Issue:
- Application notice (form N244)
- Supporting evidence
- Draft order
- Fee
- Service (as soon as practicable but not less than 3 clear days before the hearing):
- Application notice (form N244)
- Supporting evidence
- Draft order
- Notice of hearing date
- Further evidence:
- Respondent files at court and serves on the applicant evidence as soon as possible
- Applicant files at court and serves on the respondent evidence in reply as soon as possible
- Both parties file and exchange statements of costs not less than 24 hours before hearing.
- Hearing
When are without notice applications permitted?
- there is exceptional urgency (for example, a remedy is needed immediately);
- the overriding objective is best furthered by doing so;
- all parties consent;
- the court gives permission;
- a court order, rule or practice direction permits; or
- a date for a hearing has been fixed, a party wishes to make an application at that hearing, and the party does not have sufficient time to serve an application notice. In this case, the party should still inform the other party and the court (if possible in writing) as soon as he can of the nature of the application and the reason for it.
What are the procedural safeguards for without notice applications?
- The application must explain why no notice is given;
- The applicant must draw to the court’s attention arguments and evidence in support of the (absent) respondent’s position.
- The applicant must serve the respondent as soon as possible after the hearing, whether or not the court has granted the relief sought.
- The documents the applicant must serve on the respondent are:
- The application notice
- The evidence in support
- The order (CPR 23.9).
- The court order must contain a statement of the respondent’s right to make an application to set aside or vary the order. Any application to set aside must by made within 7 days of the order being served on the other party (CPR 23.10).
What is disclosure?
Disclosure is stating to another party that a document exists or has existed
Where does an obligation to give disclosure come from?
The obligation comes from a court order. There is NO automatic obligation to give disclosure of anything.
When is the order for disclosure usually given ?
On allocation OR case management conference OR on parties allocation .
What are the sources and types of disclosure order?
Standard Disclosure
OR
An Alternative Disclosure
OR
No order
When does the court arrive at an order for disclosure for a small claim track?
Direction given on allocation.
What is the time limit for disclosure for a small claim track?
At least 14 days before the date fixed for the final hearing.
Each party must file and server on every other party copies of all docs on which they intend to rely on.
When does the court arrive at an order for disclosure for a fast track?
Directions on Allocation and is usually directions is for each party to give ‘standard disclosure’
When does the court arrive at an order for disclosure for a multi-track?
At the CMC (Case Management Conference), the court will consider carefully what form of disclosure is most appropriate.
What is included and briefly explained in the disclosure report?
- what relevant doc exist or may exist
- where, and with whom, they are
- how any electronic doc are stored
- estimate the broad range of the cost that could be involved in giving standard disclosure in the case
- States which of the disclosure directions (several alternatives to standard disclosure are offered) are to be sought
When do party need to discloses copies of a document?
only if:
a) they contain a modification, obliteration or other marking or feature which itself satisfies the test for standard discourse.
b) the party has never had the original or no longer has the original in its control.
Is a duty of disclosure a continuing obligation?
Any duty of disclosure continues until proceedings are concluded.
A party must disclose docs which come within its control or were created after the date it originally gave the disclosure if they fall within the disclosure obligations.
What does a Standard disclosure require a party to disclose?
- the document on which he relies and
- the document which
- adversely affects his own case
-adversely affects another party’s case or
- supports another party’s case and
- the docs which they are required to disclose by a relevant practice direction.
What are the procedure to establish whether or not there is a duty to disclose for standard disclosure?
- is it a document ?
- is/was it in the party’s control?
- Does it fall within standard disclosure?
What is the definition of a document for standard disclosure and what does it include?
Is anything which records information (very broad).
it includes:
a. digital recordings
b. emails
c. photography
d. text messages
e. voicemails
f. metadata (data about data eg the time of creation or modification of a file or its author)
How is the duty of disclosure limited ?
The duty of disclosure is limited to documents which are or have been within the party’s control.
What does is in a party’s control?
A) Doc is (or was) in the physical possession of the party.
B) The party has (or has had) a right to possession of the doc. (Eg doc held by party’s agent)
c)The party has (or has had) a right to inspect or take copies of the doc (eg a party has a right to inspect their own medical records)
What does inspection and disclosure help with?
It helps to clarify the issues in dispute
* - to enable parties to evaluate the strength of the claim against them
* - to encourage settlement
- And to ensure the court has all the facts and evidence before it in order to deal justly and appropriately with the case
What is inspection?
Inspection is the party to whom a document has been disclosed looking at a document. Where a party has a right to inspect a document, they also have a right to request a copy of that document, and this is commonly also referred to as inspection.
When do copies need to be disclosed?
They contain a modification, obliteration or other marking or feature which itself satisfies the test for standard disclosure (CPR 31.9). Such a copy document also needs to be separately considered for privilege; or
The party has never had the original or no longer has the original in its control.
What is the general rule for inspection?
The general rule is that if a party has to disclose a document, it also must allow the other party to inspect the document
To what extent can parties use disclosed docs?
A party to whom a document has been disclosed may only use that document for the purposes of the proceedings in which it is disclosed and not for any collateral or ulterior purpose eg in other proceedings
For parties on a multi-track case, what do the parties need to complete before the CMC (Case Management Conference ?
Complete the
-Disclosure Report (Filed and Served)
and
- Draft Direction (Proposal)
What is the time limit for completing the Disclosure Report?
Not less than 14 days before CMC (Case Management Conference)
What is the time limit for completing the draft direction proposal?
At least 7 days before any CMC (Case Management Conference).
For parties on a multi-track case, what do the parties need to complete before the CMC (Case Management Conference ?
Complete the
-Disclosure Report (Filed and Served)
and
- Draft Direction (Proposal)
What Form is the Disclosure report?
Form N263
Exceptions to the rule that parties can only use that document for the purposes of the proceedings in which it is disclosed?
▪ The document has been read to or referred to by the court at a
hearing held in public (‘read’ includes pre-read and referred to in skeleton arguments);
* ▪ The court gives permission; or
* ▪ The party who disclosed the document and the person to whom the document belongs agree.
Exceptions to the right of inspection?
- A party has a right to inspect a document that has been disclosed except where:
▪ The document is no longer in the disclosing party’s control.
▪ Allowing inspection would be disproportionate.
▪ The disclosing party has a right or duty to withhold inspection (most likely because the document is privileged).
What can parties redact?
a party can redact parts which are irrelevant or which are privileged. A party cannot redact something simply because it is confidential.
What must a party do if they wish to inspect docs?
A party wishing to inspect documents must send a written notice, and inspection must then be allowed within 7 days. A party can also / alternatively ask for copies, if it undertakes to pay reasonable copying charges, and the copies must then be provided within 7 days of the request.
What is standard disclosure?
It requires a party to disclose documents which are in their control, and which they rely on, or which are adverse to their case, adverse to another party’s case, support another party’s case, or which a practice direction
requires them to disclose.
Procedurally speaking, standard disclosure is given by drawing up a list
of documents which are being disclosed. The list has three parts: a) in control, inspection permitted; b) in control, inspection not permitted; c) no longer in control.
What must the disclosing party’s search for disclosing docs be?
reasonable
What does a search being considered reasonsonable depend on?
▪ The number of documents involved
▪ The nature and complexity of the proceedings
▪ How difficult/expensive it is to retrieve any document
▪ The significance of any document likely to be found
Disclosure list?
- Standard disclosure is performed by each party making a list of the required documents and serving it on the other party (CPR 31.10). The normal direction is for lists to be exchanged simultaneously.
- The list falls into three parts:
1. ▪ ‘I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.’
2. * ▪ ‘I have control of the documents numbered and listed here, but I object to you inspecting them [due to privilege].’
3. * ▪ ‘I have had the documents numbered and listed below, but they are no longer in my control.’
The disclosure statement (part of the disclosure list)?
sets out the extent of the search made (ie that the search was reasonable and proportionate and also what was not searched for - eg documents predating a certain date);
▪ certifies the party understands its duty to disclose the documents;
and
▪ certifies that, to the best of the party’s knowledge, it has carried
out that duty.
* - The disclosure statement must include details of any documents the inspection of which the party considers disproportionate (CPR 31.3(2)).
* - The disclosure statement must be made (signed) by the disclosing party.
* - If the ‘person’ making the statement is a company, the statement should be made by an appropriate officer, who must identify him/herself and
state why they are the appropriate person to make the statement (CPR 31.10(7)).
What should a solicitor do regarding disclosure?
A solicitor is required to ‘endeavour to ensure’ that the person making the disclosure statement understands the duty of disclosure (31A PD 4.4). A solicitor should therefore advise its client of the disclosure
obligations at the outset of the case.
What is legal advice privilege?
A document which is a confidential communication between a lawyer and a client and was prepared for the purpose of giving or receiving legal advice’
What is litigation privilege?
‘A document which is a confidential communication which passed between the lawyer and his client or between one of them and a third party, where the dominant purpose in creating the document is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time reasonably in prospect’
without prejudice privilege?
‘A document whose purpose is a genuine attempt to settle a dispute
When can you redact parts of docs?
Firstly, if there is a clear and distinct part of a document which does attract privilege, but the remainder does not, then the
privileged part can and indeed should be redacted, to avoid waiving privilege
Secondly, if the information is totally irrelevant to the dispute, it can be redacted. So information which is confidential / commercially sensitive and irrelevant is generally redacted.
waiver of privilege?
party to deliberately allow inspection of a privileged document
What happens when you waive priviledge?
- Firstly, waiver of privilege in part of a wholly privileged document will lead to waiver of privilege over the remainder of the document, unless it deals with entirely different subject matter: a party cannot ‘cherry pick’ certain parts of a privileged document to reveal to the other side/the court (Great Atlantic Insurance v Home Insurance [1981] 1 WLR 529).
- Secondly, by way of expansion of the previous point, waiver of privilege
in one document can lead to privilege being lost in other documents, if it would be unfair to allow the party waiving privilege not to put those documents before the court / opponent too (for example, if they all deal with the same subject matter and only permitting inspection of the first document could lead to the facts being misunderstood).
- Secondly, by way of expansion of the previous point, waiver of privilege
How long does something remain priviledged for?
If something is privileged in relation to one set of proceedings, it will remain privileged in relation to all proceedings (The Aegis Blaze [1986] 1 Lloyd’s Rep 203) unless something takes place to cause the privilege to be lost, such as waiver (see above).
Burden of proof on dispute over privildege?
Where there is a dispute over whether a document is subject to privilege, the burden of proof is on the party claiming privilege to establish it.
What else can a party inspect besides disclosed docs?
a party can inspect a document referred to in a statement of case, a witness statement, a witness summary, an affidavit and (subject to
certain restrictions) an expert’s report
Procedure for inspection?
A party wishing to inspect documents must send a written notice of its wish to do so to the other side and the other side must allow inspection within seven days of receipt of the notice (CPR 31.15(a) and (b)). The court directions may vary these time limits.
It is possible to ask for copies instead or as well, with an undertaking to pay reasonable photocopying charges (CPR 31.15(c)). Copies must provided within 7 days of receipt of the request.
What happens if someone repeats the legal adivce they were given - do they still have legal advice priviledge?
whether what a client passes on is a repetition of his lawyer’s legal advice (which is covered by privilege) or his own opinion (which is not covered by privilege) is often debateable. It is therefore important to advise clients to be very careful about how legal advice gets disseminated to the board of a company for fear of losing legal advice privilege in relation to the advice.
What does litigation privilege extend to?
documents which are brought into existence for the purpose prosecuting or defending the claim.
or
Communication between lawyer and third party
what is the test for litigation privilege?
Dominant purpose: If there is more than one purpose behind the preparation of a document, the court will look at the dominant purpose – the test, therefore, is one of dominance and not
exclusivity.
What is litigation reasonably in prospect?
This means litigation must be a real likelihood rather than a mere possibility. A general apprehension of future litigation is insufficient.
Does a without prejudice doc have to look a certain way?
The document need not be marked ‘without prejudice’ for the privilege to apply. Conversely, a document marked ‘without prejudice’ may not be a genuine attempt to settle and would therefore fall to be inspected
‘without prejudice save as to costs’?
This means that the court will not see the
document’s contents unless it is considering the costs of the action or a particular issue. If it is considering costs, the judge is generally entitled to see the document and can take its contents into account when
deciding (for example) the parties’ conduct and which party is liable for costs/the amount of costs payable.
order for specific disclosure?
an order that party must carry out a specified search for documents and/or disclose certain documents.
An order for specific inspection is an order that a party permits inspection of a document which the disclosing party alleges it would be disproportionate to allow inspection of.
- An order for specific disclosure is an order that a party must do one or more of the following things (CPR 31.12(2)):
▪ Disclose documents / classes of documents specified in the order;
▪ Carry out a search to the extent stated in the order;
▪ Disclose any documents located as a result of that search.
What does the court consider when granting specific disclosure?
When deciding whether to grant such an order, the court will consider all the circumstances,
the overriding objective,
and If the court decides that the party against whom specific disclosure is sought has ‘failed adequately to comply with the obligations imposed by an order for disclosure’, the court ‘will usually make such order as is necessary to ensure that those obligations are properly complied with’.
pre-action disclosure?
An order for pre-action disclosure allows disclosure to obtained from a likely opponent before proceedings have been issued.
Timing of an application for specific disclosure?
The court has the jurisdiction to make an order for specific disclosure and / or inspection at any time after proceedings have been issued.
* - In practice, an application for specific disclosure is generally made after standard disclosure has occurred, where the applicant considers that further disclosure should be made by the other party (or parties).
Procedure for specific disclosure?
- The application must:
▪ specify the order sought, including listing the documents sought in a schedule to the order. The more specific the list, the more likely the application is to succeed; and
▪ be supported by evidence (CPR 31A PD 5.2 and 5.3).
The court may make an order for pre-action disclosure where
The respondent is likely to be a party to subsequent proceedings; and
* ▪ The applicant is also likely to be a party to those proceedings; and
* ▪ If proceedings had started, the respondent’s duty by way of standard disclosure (CPR 31.6) would extend to the documents or classes of documents which the applicant seeks (so The scope of a pre-action disclosure order cannot be wider than that of an
ordinary standard disclosure order); and
▪ Pre-action disclosure is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs.
If all the prescribed conditions mentioned above are satisfied (CPR 31.1
Pre-action disclosure procedure?
the application must:
▪ specify the order sought, including listing the documents sought
▪ be supported by evidence
may also require the respondent to specify those documents which are no longer under its control or which it has a right to withhold from inspection
Costs for pre-action disclosure?
In relation to costs, the general rule for pre-action disclosure applications is that the party against whom an order for pre-action disclosure is sought will as a general rule be awarded the costs of the application and
of complying with it. Accordingly, the applicant for pre-action disclosure will generally have to pay the respondent’s costs.
