DR Flashcards
What is the procedure for mediation?
Parties agree independent 3rd Party to act as a ‘go between’
Parties send mediator written statements. (Then discussed without prejudice)
Mediator identifies real areas of disagreement and most important points to parties.
Often meet in same building for efficiently. In many cases, the mediator and the parties will meet in the same building.
What is the procedure for arbitration?
The dispute is referred to an independent arbitrator. The person, professional or trade body may be specified in the original contract; alternatively, the parties may choose their own arbitrator with the relevant experience. An arbitration process will be adopted but this will be less formal than the court procedure.
Once the third party has reached their decision, this is binding on both parties to the dispute.
Is the outcome if arbitration enforceable?
Once a decision has been reached, the winning party to an arbitration can apply to the High Court under s 66 of the Arbitration Act 1996 for permission to enforce the arbitration award as if it were a court judgment.
What is the aim of the CPR?
Provide a more user friendly system for resolving disputes.
5 Stages of Civil Claim
1: Pre Commencement
Practice directions, pre action procedures. Objectives, costs, send letter before claim.
2: Commencing Claim.
Issue and serve CF and particulars. Wait for defence / counterclaims. Allocated to a track.
3: Interim Matters
Disclosure, interim applications (summary judgment, payments, Part 18 requests etc)
Directions given to parties. CMC, timetables given.
4: Trial
Hear evidence and decide on liability, quantum and costs.
5: Post Trial
Appeals if parties are unhappy with outcome.
Application to court to enforce judgment if not complied with.
What are the consequences if a party misses a limitation period?
If a party has missed the limitation period, the defendant will have a technical defence to the claim. This means that, if the court agrees the claim is statute barred, the claimant will not succeed in the litigation
How to check if the defendant is worth suing?
a) a search at Companies House to ascertain information about the financial position of a company;
b) a bankruptcy search of an individual;
c) instructing an inquiry agent (although the costs of this must be considered); and
d) the use of various internet search engines to see if there is any relevant information there.
Define an unspecified claim
If the court will have to conduct an investigation to determine the amount of money payable, the claim is an unspecified one even if the claimant puts forward some figures. Thus, damages claims are usually unspecified.
e.g. Loss of profits where this is not certain
What is the Practice Direction on Pre- Action Conduct and Protocols (PDPAC)?
if no relevant protocol exists, there is a Practice Direction on Pre- Action Conduct and Protocols (PDPAC), which contains general guidance to be followed in such cases. Many of the provisions mirror those of the protocols so that, effectively, all civil cases are dealt with in a similar way.
The PDPAC and the protocols are important elements of civil litigation, and solicitors must ensure they understand the content and are able to apply the provisions effectively.
Core Steps of PDPAC
- Letter Before Claim
- Response to LBC
- Parties consider ADR
- Stocktake
- Sanctions for non compliance
Pre Action Protocol - Professional Negligence
- notify professional of intention to claim, brief outline of grievance, general indication of financials if possible (preliminary notice)
- Professional responds in 21 days (and notifies insurers)
- Letter of claim (from claimant). Full details of issues & attach docs.
- Defendant acknowledges receipt in 21 days.
- Letter of response - in 3 months. admitting / denying allegations and reasons.
- Letter of settlement (if D wants to settle)
- Negotiation or C begins court proceedings.
- Stocktake
County Court Proceedings
County Court Business Centres x2: issue most civil claims
a) All money-only claims made on paper (specified or unspecified) = Civil National Business Centre in Northampton
If a hearing is required, usually in contested cases, the matter will be transferred to the County Court hearing centre local to the defendant.
b) The Civil National Business Centre at Northampton deals with online claims for specified sums of money (debt claims) for amounts of up to £100,000. These are made via the website Money Claim Online (MCOL), which allows individuals, businesses and solicitors to issue proceedings, check the status of the claim, request judgment and enforce it over the internet.
This court also provides a service for bulk users, such as utility providers and credit card companies, that file large volumes of claims for money.
c) For all other County Court claims, the claimant can usually issue proceedings in any of the County Court hearing centres situated throughout England and Wales. In such circumstances most claimants will choose to start proceedings in the court closest to their home or business.
How to issue proceedings
Send docs to court for claim to be issued:
- Claim Form (N1)
- Particulars of claim
- Docs required by CPR (copy of contract)
Claim issued by court = proceedings started
On what grounds can can party be added, substituted or removed from a claim form if the application was made within the limitation period?
It is desirable:
a) to add a new party to resolve matters in dispute; or
b) to remove a party; or
c) to substitute a party where the existing party’s interest or liability has passed to them.
On what grounds can can party be added, substituted or removed from a claim form if the application was made outside the limitation period?
A party may only be added or substituted if the limitation period was current when proceedings were started AND
a) the original party was named by mistake; or
b) the original party has died/is subject to a bankruptcy order and their interest or liability has passed to the new party; or
c) the claim cannot properly be carried on without the new party.
How to serve a claim form?
Served within 4 months of issue
Sent or delivered to defendant
Served on solicitors if they have been nominated to receive it (in writing). Once nominated, all docs must be served on them
When is a claim form ‘served’?
Second business day after ‘service’ takes place
Deemed service of documents (not CF)
Personal Service, email, delivery, fax: if before 4.30pm on business day, on that day. If not, on the next business day.
DX & 1st Class Post: if on a business day, the second day after action. If not on business day, the next business day.
What are the deadlines for service if a claim for is to be served out of jurisdiction of England and Wales?
Within 6 months of issue.
Scotland & NI = no permission required
Anywhere else = court permission required (unless contract contains english jurisdiction clause)
What is the procedure if a defendant makes an admission of an entire specified claim?
Provide details of income and expenditure.
Make an offer to pay (full or installments)
Claimant makes request for judgment when they receive this.
What is the procedure if a defendant makes an admission of part of a specified claim?
Claimant has 14 days to consider offer
Claimant options:
- Accept offer in full satisfaction of claim, request judgment from court
- Accept in partial satisfaction. Debate payment terms (court decides)
- reject entire offer. proceed with claim
Can the deadline for filing the defence be extended?
Agreement from the other parties = extended by 28 days. Total 56 days from particulars.
Any further extension would need the court’s permission.
What is the procedure for a judgment in default?
C Applies under Part 12 CPR = Request for default judgment.
Prove to court:
a) the particulars of claim have been served upon the defendant; and
b) the defendant has not filed an acknowledgement of service form or a defence within the relevant time period.
What procedural requirements are there for setting aside a default judgment?
File application notice (N244) + witness statement of submissions
Is permission required to discontinue a claim?
Not usually, but permission must be obtained in certain circumstances such as if the court has granted an interim injunction.
What is the procedure for discontinuing a claim?
File & Serve notice on all parties (and copy of consent, if required)
What is a pre action settlement?
Settlement before proceedings are started
MUST: keep terms of agreement in writing.
What is a consent order?
Consent order: terms of post action settlement, sealed by a court officer. Avoids application for settlement. Only if there are no litigants in person.
What are statements of case?
Statements of case are the formal documents in which the parties concisely set out their respective cases. Court only decides issues that are in the statement of case.
Including:
Claim Form, Particulars, Defence, Counterclaims, Defence to counter, request for further info, response to part 18 request.
What should particulars of claim include?
- concise statement of facts.
- Statement for interest claimed
- Verified statement of truth
Particulars of Claim: Breach of Contract (Contents)
- Status of parties
- Chronology of events
- Existence of Contract
- Terms of contract
- Alleged breach
- Interest
- Relief Claimed
- Statement of Truth
Particulars of Claim: Negligence (Contents)
- Status of Parties
- Chronology of Events
- Particulars of Negligence (allegations)
- Particulars of loss and damage
- Interest
- What is being claimed
- Statement of truth
If Defence makes non admissions, does the claimant need to prove the allegation?
Yes
Contents of a defence
Name of court
Claim Number
Parties
Title (DEFENCE)
Date & signature of solicitors in name of firm
Statement of truth
Details of who should be served and where
What is an indemnity (Part 20) ?
Third party obliged (by terms of contract or statute), to indemnify defendant if they are found liable for claim.
What is a reply to a defence?
No obligation to reply
Claimant can respond to matters raised in defence, but not covered in particulars
How to defend a counter claim?
File defence within 14 days (28 day extension if agreed by the parties)
Failure = judgment in default can be entered
Procedure to apply for permission to amend statements of case?
File copy of statement of case AND proposed amendments AND application notice.
Court decides whether to grant application (considering OO)
Permission to amend statement of case after limitation period ends?
Court allows if:
a. add or sub a new claim, if arising out of same or substantially same facts as existing claim
b. to correct a mistake to party name
c. to alter capacity in which a party claims.
What is a request for further info?
Part 18
a. clarify any matter in dispute OR
b. give additional information to a matter
Procedure for request for further info:
- serve written request on party
- Party responds (in reasonable time) in writing. give details on response, served on all parties and filed with court.
- if no response, file application under Part 18. Court grants order if needed.
Content of an interim application notice
State what is sought and why
Set out facts being relied on
File witness statements (if needed)
Verified by statement of truth
Attach draft order - PD 23A
How to use a consent order in an interim application?
If reaching an agreement for order, apply to court for order of consent without needing a hearing.
provide court info it needs to make appropriate order
When can orders be made without notice?
a. exceptional urgency OR
b. OO of CPR is best achieved by making order without notice
Procedure:
Serve copies on respondent, ASAP: court order, application notice, supporting evidence.
Respondent has 7 days to apply to set aside or vary
Summary Judgment: compelling reasons
a. need for more investigations
b. highly complex/technical nature, must be understood with all evidence at trial
c. need to hear from witnesses
Interim Injunctions: American Cyanamid Guidelines
a. is there a serious question to be tried
b. are damages an adequate remedy
c. balance of convenience lies in favour of injunction or not
d. any special factors of case
Procedure for interim injunction without notice?
a. Court may fix date for a hearing with all parties. Injunction lasts until the hearing, then decided on.
b. Injunction tells defendant that may apply on notice for the order to be set aside or varied.
What is an interim payment?
Advance payment on account of damages, debt or other sum (not costs) that defendant might be liable to pay
When can an interim application be made?
Once time for ack of service has expired
What is the Overriding Objective of CPR?
Court deals with cases justly and proportionately
6 Objectives Court considers when dealing with cases?
a. ensure parties are on equal footing
b. saving expense
c. deal with cases in way that is proportionate to: amount of £ involved, complexity, financial position of parties
d. Ensure case is dealt with expeditiously and fairly
e.giving appropriate amount of resources
f. enforcing compliance
What is the directions questionnaire?
Parties consult & co operate to complete.
Form N181
What is a case summary?
Doc prepared for CMC.
Prepared by claimant (should agree with other parties)
Describes what matters are still in dispute and what is agreed.
Brief chronology of claim.
When should Cost Budget (Precedent H) be filed?
Claims under 50K = with DQ
Claims over 50K = 21 days before CMC
Complete Budget Discussion Report (Precedent R) 7 days before CMC.
Effect of not filing / late filing cost budget?
Treated as having filed cost budget of court fees only
Effect of no CMO?
More flexibility
If difference of 20% from costs claimed and costs in budget, must provide statement for reasons. Court then decides.
Grounds to apply for relief from sanctions
Costs: party should appeal against order
Other: apply to obtain relief from penalty
Court Considers:
- circumstances of case
- need for litigation to be efficient and proportionate cost
- need to enforce compliance with rules, PD and orders
Denton v White: Guidelines for court to relieve sanctions
- identify and assess seriousness of failure
- consider why failure occurred
- evaluate circumstances of case (if trial date can be met, effect of failure, effect of relief)
How do parties notify the court of their requirements for disclosure?
Compiling a disclosure report. Filed 14 days before CMC
What happens after disclosure report is filed and served?
7 days (min) before CMC, parties meet and agree proposal for disclosure to meet OO.
File agreement at court.
Documents within control:
a. are / were in physical possession
b. they have a right to
c. they have a right to inspect
Duty to search
Reasonable and proportionate search for docs that:
- adversely affect own case
- adversely affect another party’s case
- support another parties case
How to make an application for specific disclosure
Apply to court under R 31.12 + witness statement in support.
Request that party:
Carries out a more extensive search AND
Discloses any further docs located as a result
Disclose specific docs they expected to see
How to dispute disclosure privilege
Apply to court under 31.19
Court can require party to produce the doc, invite anyone to make representations and determine if it has been correctly categorised.
Application for Pre Action Disclosure: Contents
Witness statement
Satisfiying:
- both parties are likely to be party to proceedings
- documents sought would come within standard disclosure AND disclosure is desireable to dispose fairly of proceedings
How does the court control evidence?
By giving directions to:
- issues that it requires evidence for
- nature of evidence required
- number of witnesses needed
- how evidence is presented to the court
Requirements for calling a witness
Serve witness statement on other parties setting out facts that witness would give orally
Witness Summary: Why & Contents
Why? If witness statement cannot be obtained. Apply to court without notice for order to serve written witness summary
Contents:
- witness name and address
- evidence witness provides (known or not)
- Matters on which witness would be questioned at trial (disputed issues)
Witness Statements: Form & Content
Heading: title of proceedings, name of witness, number of statement, date
Witness address, occupation / description. statement made in course of employment or not.
Paragraphs numbered. Numbers as figures.
Follow chronology
written in first person, in own words as far as possible
Indicate what statements are made from own knowledge or not
State process by which statement was prepared.
Any docs attached
Verified by statement of truth
Must be signed by party (not legal rep)
