DR GAPS Flashcards
Characteristics of Arbitration
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
Litigation
Decisions made by judge
Strict rules of evidence apply
Limitation
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
Practice Direction - Pre-action conduct
If settlement is not achieved protocol lays groundwork for proceedings
PI Protocol Use and Aim
Mainly used for fast track
if it fails to achieve settlement then the claimant can issue proceedings
PI Protocol Claimant
Template letter covers:
- Summary of facts
- Details of injuries
-Impact of injuries
- Hospital attended
- Known financial losses
- Documents sought
- Requires response within 21 days
PI Protocol Defendant
Respond within 21 days
Then have 3 months to investigate claim
Denial must be supported with relevant evidence
Failure to follow practice directions
Sanctions
stay of proceedings to require compliance
Where to start proceedings - allocation between CC and HC
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
Part 8 Claims
Straightforward claim - no substantial dispute of facts
Issuing a claim
Stops limitation clock
Claim form sent to court
Adding, removing or substituting parties
Party may amend its statement of case at any time during proceedings with permission of court
Limitation applies
Service of proceedings
Sealed claim form must be served within 4 months inside jurisdiction
6 months outside jurisdiction
Service outside the UK
Permission not required if resident of the UK - otherwise requiried
Service of Particulars of Claim
Within 14 days of service of claim form
Service by Alternative Method
CPRs permit service by alternative method/place if there is good reason for it
Admitting claim
Court will issue judgement order
C can ask for time to pay
Acknowledging service and filing defence/counterclaim
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
Disputing court’s jurisdiction
If application fails file defence within 14 days
Setting aside default judgement
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
Settlement
Can reach settlement at any stage - will not carry weight unless terms of agreement unless embodied in court order (Tomlin order)
Part 20 Claim
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
Responding to part 20 Claim
Defence / response within 14 days
Can obtain default judgement in usual way
Requests for further information
Make enquiries to other party - if they do not provide info in a reasonable period can make an application to court for further info
Objection to request for further information
Request is unnecessary, irrelevant or improper
Unable to provide information
Insufficient time to reply
It would conflict with overriding objective of CPRs
Privileged information
Amendments to statements of case
After service must have consent of all parties or permission of the court
Substituting party after limitation expiry
Limitation was current when proceedings were started and addition or substitution is necessary
Procedure for marking an interim application
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
Unless order
Made to force compliance with a rule of practice direction
Claim or part will be struct out for non-compliance
Examples of interim applications
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
Discharging injunction
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
Freezing injunction
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
Search orders
Mandatory injunction
Used where D will not obey rules relating to disclosure
Relief of last resort
Search order requirements
-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
Case Management - Overriding Objectives
Save expense
Ensure the case is dealt with expeditiously and fairly
Deal with cases proportionately
Small Claims Track
Limited to fixed costs and reasonable expenses in attending
Expert fees limited to £750
Fast Track
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
Multi-track
Value in excess of £25k or where the trail will last more than one day
Non-compliance with Order / Sanctions
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
Relief from sanctions
Not enough to simply demonstrate that they have finally complied with an order
Case management - Multi-track
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
Evidence - Hearsay
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
Judge’s considerations when deciding weight of hearsay evidence
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
Affidavit
Statement of truth sworn in front of a solicitor
Disclosure
Informing the other side of the existence of a document.
Inspection is the process of viewing it
Standard disclosure
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
Disclosure List
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
Disclosure statement
Details the extent of the search made
Specific disclosure
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
Non-party disclosure
Often where the following are involved:
- Freezing injunctions
-Search Orders - Applications for preservation of property
Privilege
Legal advice privilege
Litigation
Common interest
WP
Public interest immunity
Summoning witnesses
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
Settlement before trial
Settlement before trial (other than by Part 36 acceptance) must be recorded in a court order - Usually a Tomlin order
Tomlin Order
Specifies terms of settlement
If settlement is not fulfilled the matter will proceed to trial
Pre-Trial Review
takes place 10 weeks before trial
Designed to prevent unnecessary delay or adjournment
Trial format
- C’s opening submissions
- D’s opening submissions
- Consideration of any preliminary issues
- C’s witnesses give evidence
- C’s experts give evidence
- D’s witnesses give evidence
- D’s experts give evidence
- C’s closing submissions
- D’s closing submissions
Nature and effect of judgement - ancillary matters
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
Assessing costs - Standard Basis
Court only allows proportionate costs - any doubt exercised in favour of paying party
Assessing costs - indemnity
Court does not consider proportionality
Doubt exercised in favour of receiving party
Assessing costs
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
Final and Interim Costs Order
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
Non-party costs
Exceptional and at court’s discretion
Non-party is added as party to the proceedings for the purposes of costs only
Part 36 Requirements
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
Part 36 Offer
Can be made at any stage in proceedings - including before issue
Acceptance must be in writing
Security for Costs
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
Appeals
No automatic right to appeal
Must apply for court permission
Appeal destinations
DJ (CC) to CJ (CC)
CJ (CC) to HCJ (HC)
Master (HC) to HCJ (HC)
HCJ to CoA
CoA to UKSC
Grounds for appeal
Decision is wrong in fact or law, or exercise of discretion
Decision is unjust because of serious procedural irregularity
Appeal time limits
Must make application within 21 days
Outside of limit, must apply for permission from CoA - treated as an application for relief from sanctions
Enforcement - Interest
Court rate is 8%
Not payable (unless court directs) on amounts under £5k
Enforcement
CCJ over £600 can be transferred to the HC for enforcement
Oral Examination
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
Methods of Enforcement
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
Enforcement overseas
Must be country with reciprocal arrangement with UK
