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GAPS > DR GAPS > Flashcards

DR GAPS Flashcards

1
Q

Characteristics of Arbitration

A

Contract must specifically state that disputes are to be resolved by arbitration

Ruling enforceable in court

Must follow arbitration process unless parties agree otherwise

Strict rules of evidence do not apply

Decision is called a final award

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2
Q

Litigation

A

Decisions made by judge

Strict rules of evidence apply

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3
Q

Limitation

A

Limitation Act 1980

Measured from accrual of action or when C first gains knowledge

PI / Death - 3 years
Contract/Other Torts - 6 years

Clock does not start for minors until 18

Does not stop if C loses capacity

Does not run until fraud is discovered

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4
Q

Practice Direction - Pre-action conduct

A

If settlement is not achieved protocol lays groundwork for proceedings

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5
Q

PI Protocol Use and Aim

A

Mainly used for fast track

if it fails to achieve settlement then the claimant can issue proceedings

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6
Q

PI Protocol Claimant

A

Template letter covers:
- Summary of facts
- Details of injuries
-Impact of injuries
- Hospital attended
- Known financial losses
- Documents sought
- Requires response within 21 days

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7
Q

PI Protocol Defendant

A

Respond within 21 days

Then have 3 months to investigate claim

Denial must be supported with relevant evidence

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8
Q

Failure to follow practice directions

A

Sanctions

stay of proceedings to require compliance

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9
Q

Where to start proceedings - allocation between CC and HC

A

Cannot be started in the HC unless the value is more than £100k or £50k for PI

Straightforward claim of higher value can be started in CC

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10
Q

Part 8 Claims

A

Straightforward claim - no substantial dispute of facts

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11
Q

Issuing a claim

A

Stops limitation clock

Claim form sent to court

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12
Q

Adding, removing or substituting parties

A

Party may amend its statement of case at any time during proceedings with permission of court

Limitation applies

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13
Q

Service of proceedings

A

Sealed claim form must be served within 4 months inside jurisdiction

6 months outside jurisdiction

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14
Q

Service outside the UK

A

Permission not required if resident of the UK - otherwise requiried

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15
Q

Service of Particulars of Claim

A

Within 14 days of service of claim form

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16
Q

Service by Alternative Method

A

CPRs permit service by alternative method/place if there is good reason for it

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17
Q

Admitting claim

A

Court will issue judgement order

C can ask for time to pay

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18
Q

Acknowledging service and filing defence/counterclaim

A

Can request further 28 days by agreement - D must inform court of agreement (56 days in total)

Application would have to be made for longer extension

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19
Q

Disputing court’s jurisdiction

A

If application fails file defence within 14 days

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20
Q

Setting aside default judgement

A

Defendant has a real prospect of successfully defending the claim

AND

There is some other good reason why judgement should be set aside

D must act promptly

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21
Q

Settlement

A

Can reach settlement at any stage - will not carry weight unless terms of agreement unless embodied in court order (Tomlin order)

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22
Q

Part 20 Claim

A

Can be made without permission if issued before or at the same time as the defence is filed

party may serve a notice on another party that they must pay the serving party some or all of any payment if the serving party is ordered to pay the claimant

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23
Q

Responding to part 20 Claim

A

Defence / response within 14 days

Can obtain default judgement in usual way

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24
Q

Requests for further information

A

Make enquiries to other party - if they do not provide info in a reasonable period can make an application to court for further info

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25
Q

Objection to request for further information

A

Request is unnecessary, irrelevant or improper

Unable to provide information

Insufficient time to reply

It would conflict with overriding objective of CPRs

Privileged information

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26
Q

Amendments to statements of case

A

After service must have consent of all parties or permission of the court

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27
Q

Substituting party after limitation expiry

A

Limitation was current when proceedings were started and addition or substitution is necessary

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28
Q

Procedure for marking an interim application

A

Should be made as soon as it is apparent that it is necessary or desirable

If possible application should be made and heard at any hearing already listed

Should give at least 3 days’ notice unless there is a good reason - i.e. defeat purpose of application

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29
Q

Unless order

A

Made to force compliance with a rule of practice direction

Claim or part will be struct out for non-compliance

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30
Q

Examples of interim applications

A

Setting aside default judgement

Summary judgement (other party has no real prospect of success and there is no compelling reason why the case should proceed)

Interim payment

31
Q

Discharging injunction

A

Facts do not justify an injunction

Injunction is oppressive

Material change in circumstances / law since injunction was granted

Claimant has failed to prosecute the claim with due speed

32
Q

Freezing injunction

A

Made to HC - must be satisfied:

  • Justifiable cause of action
  • C has good, arguable case
  • D has assets within jurisdiction
    -D may dispose or dissipate assets before judgement can be enforced

Binds third party with knowledge of it

33
Q

Search orders

A

Mandatory injunction

Used where D will not obey rules relating to disclosure

Relief of last resort

34
Q

Search order requirements

A

-Strong prima facie case

  • D’s activities must cause serious harm / potential harm to C’s interest

Must be clear evidence that property/documents in D’s possession and real possibility could be destroyed before application could be made on notice

35
Q

Case Management - Overriding Objectives

A

Save expense
Ensure the case is dealt with expeditiously and fairly
Deal with cases proportionately

36
Q

Small Claims Track

A

Limited to fixed costs and reasonable expenses in attending

Expert fees limited to £750

37
Q

Fast Track

A

Cases between £10k and £25k or PI over £1k

Fixed costs and fixed trial costs

Trial takes place within 30 weeks of allocation

Emphasis on written rather than oral evidence - use of single joint experts encouraged

38
Q

Multi-track

A

Value in excess of £25k or where the trail will last more than one day

39
Q

Non-compliance with Order / Sanctions

A

May impose costs order on non-complying party - i.e. indemnity costs

May impose penalty interest rate

May restrict number of witnesses

May disallow evidence

40
Q

Relief from sanctions

A

Not enough to simply demonstrate that they have finally complied with an order

41
Q

Case management - Multi-track

A

Must file costs budget with Directions Questionnaire if the case is worth less than £50k or 21 days before the first CMC if the value is more than £50k

Aim is to give court control over costs and ensure that the parties are on an equal footing

42
Q

Evidence - Hearsay

A

Usually when witness does not attend court

Party seeking to rely on hearsay must serve notice on opponent

Party served may seek to call the witness at trial to seek to attack the witness’ credibility

43
Q

Judge’s considerations when deciding weight of hearsay evidence

A

Whether it would have been reasonable or practicable for the witness to attend

Whether the original statement was made contemporaneously with the event

Whether the evidence involves multiple hearsay

Whether there was a motive to misrepresent the position stated in the hearsay or to conceal facts

Whether the statement was edited

44
Q

Affidavit

A

Statement of truth sworn in front of a solicitor

45
Q

Disclosure

A

Informing the other side of the existence of a document.

Inspection is the process of viewing it

46
Q

Standard disclosure

A

Usually used in PI Fast track and in multi-track cases

Each party must disclose documents on which it relies

Documents that affect the case adversely

Documents that affect the other party’s case adversely

Documents that support the other party’s case

47
Q

Disclosure List

A

Fast Track and Multi-Track cases

Divided into 3:

  • Documents in control they do not object to inspection
  • Documents in control they object to inspection

Documents no longer in their control

48
Q

Disclosure statement

A

Details the extent of the search made

49
Q

Specific disclosure

A

Court order (application usually made after standard disclosure)

Requires party to disclose or search for and disclose documents that:

  • It has reason to believe may contain information which will assist the applicant’s case or damage the respondent’s case

Or

  • May lease to a train of enquiry which has either of the consequences above
50
Q

Non-party disclosure

A

Often where the following are involved:

  • Freezing injunctions
    -Search Orders
  • Applications for preservation of property
51
Q

Privilege

A

Legal advice privilege
Litigation
Common interest
WP
Public interest immunity

52
Q

Summoning witnesses

A

Purpose is to compel attendance to give evidence at trial

Must provide ‘conduct money’ to be valid - expenses

Failure to attend will make them in contempt of court

53
Q

Settlement before trial

A

Settlement before trial (other than by Part 36 acceptance) must be recorded in a court order - Usually a Tomlin order

54
Q

Tomlin Order

A

Specifies terms of settlement

If settlement is not fulfilled the matter will proceed to trial

55
Q

Pre-Trial Review

A

takes place 10 weeks before trial

Designed to prevent unnecessary delay or adjournment

56
Q

Trial format

A
  1. C’s opening submissions
  2. D’s opening submissions
  3. Consideration of any preliminary issues
  4. C’s witnesses give evidence
  5. C’s experts give evidence
  6. D’s witnesses give evidence
  7. D’s experts give evidence
  8. C’s closing submissions
  9. D’s closing submissions
57
Q

Nature and effect of judgement - ancillary matters

A

Interest - calculation included in judgement

Costs - usual rule is loser pays. Court can exercise discretion.

Time to pay - losing party can request

Stay of execution.- losing party can request when there is an intention to appeal

58
Q

Assessing costs - Standard Basis

A

Court only allows proportionate costs - any doubt exercised in favour of paying party

59
Q

Assessing costs - indemnity

A

Court does not consider proportionality

Doubt exercised in favour of receiving party

60
Q

Assessing costs

A

Parties should seek to agree

If they cannot agree, court will consider:
- value of claim
- Complexity and importance of claim
- Skill and effort involved
- Time spent

61
Q

Final and Interim Costs Order

A

Final costs certificate issued once the parties agree or following assessment

Possible for court to issue an interim costs certificate if assessment hearing is some time away

62
Q

Non-party costs

A

Exceptional and at court’s discretion

Non-party is added as party to the proceedings for the purposes of costs only

63
Q

Part 36 Requirements

A

Must be in writing

State clearly it is made pursuant to CPR Part 36

Specify period of no less than 21 days for acceptance

State whether it relates to whole or part of claim

State whether offer takes into account any counterclaim

64
Q

Part 36 Offer

A

Can be made at any stage in proceedings - including before issue

Acceptance must be in writing

65
Q

Security for Costs

A

Type of interim application

Reasons:
- D is resident outside jurisdiction

  • D failed to provide an address
  • D has take steps to make enforcement of a costs order difficult
66
Q

Appeals

A

No automatic right to appeal

Must apply for court permission

67
Q

Appeal destinations

A

DJ (CC) to CJ (CC)

CJ (CC) to HCJ (HC)

Master (HC) to HCJ (HC)

HCJ to CoA

CoA to UKSC

68
Q

Grounds for appeal

A

Decision is wrong in fact or law, or exercise of discretion

Decision is unjust because of serious procedural irregularity

69
Q

Appeal time limits

A

Must make application within 21 days

Outside of limit, must apply for permission from CoA - treated as an application for relief from sanctions

70
Q

Enforcement - Interest

A

Court rate is 8%
Not payable (unless court directs) on amounts under £5k

71
Q

Enforcement

A

CCJ over £600 can be transferred to the HC for enforcement

72
Q

Oral Examination

A

Successful party can apply for order requiring losing party to attend court hearing and provide information about means and assets

Personal service on debtor no less than 14 days before hearing

Successful party must file affidavit 2 days before hearing stating how much remains unpaid

73
Q

Methods of Enforcement

A

Take control of goods - HC writ of control - CC warrant of control

Stat demand

Charging order

Third party debt order - money in bank - require bank to pay creditor

74
Q

Enforcement overseas

A

Must be country with reciprocal arrangement with UK

GAPS (5 decks)

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