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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
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
26
Amendments to statements of case
After service must have consent of all parties or permission of the court
27
Substituting party after limitation expiry
Limitation was current when proceedings were started and addition or substitution is necessary
28
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
29
Unless order
Made to force compliance with a rule of practice direction Claim or part will be struct out for non-compliance
30
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
31
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
32
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
33
Search orders
Mandatory injunction Used where D will not obey rules relating to disclosure Relief of last resort
34
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
35
Case Management - Overriding Objectives
Save expense Ensure the case is dealt with expeditiously and fairly Deal with cases proportionately
36
Small Claims Track
Limited to fixed costs and reasonable expenses in attending Expert fees limited to £750
37
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
38
Multi-track
Value in excess of £25k or where the trail will last more than one day
39
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
40
Relief from sanctions
Not enough to simply demonstrate that they have finally complied with an order
41
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
42
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
43
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
44
Affidavit
Statement of truth sworn in front of a solicitor
45
Disclosure
Informing the other side of the existence of a document. Inspection is the process of viewing it
46
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
47
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
48
Disclosure statement
Details the extent of the search made
49
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
50
Non-party disclosure
Often where the following are involved: - Freezing injunctions -Search Orders - Applications for preservation of property
51
Privilege
Legal advice privilege Litigation Common interest WP Public interest immunity
52
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
53
Settlement before trial
Settlement before trial (other than by Part 36 acceptance) must be recorded in a court order - Usually a Tomlin order
54
Tomlin Order
Specifies terms of settlement If settlement is not fulfilled the matter will proceed to trial
55
Pre-Trial Review
takes place 10 weeks before trial Designed to prevent unnecessary delay or adjournment
56
Trial format
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
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
58
Assessing costs - Standard Basis
Court only allows proportionate costs - any doubt exercised in favour of paying party
59
Assessing costs - indemnity
Court does not consider proportionality Doubt exercised in favour of receiving party
60
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
61
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
62
Non-party costs
Exceptional and at court's discretion Non-party is added as party to the proceedings for the purposes of costs only
63
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
64
Part 36 Offer
Can be made at any stage in proceedings - including before issue Acceptance must be in writing
65
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
66
Appeals
No automatic right to appeal Must apply for court permission
67
Appeal destinations
DJ (CC) to CJ (CC) CJ (CC) to HCJ (HC) Master (HC) to HCJ (HC) HCJ to CoA CoA to UKSC
68
Grounds for appeal
Decision is wrong in fact or law, or exercise of discretion Decision is unjust because of serious procedural irregularity
69
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
70
Enforcement - Interest
Court rate is 8% Not payable (unless court directs) on amounts under £5k
71
Enforcement
CCJ over £600 can be transferred to the HC for enforcement
72
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
73
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
74
Enforcement overseas
Must be country with reciprocal arrangement with UK

GAPS (5 decks)

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