DR - weak areas Flashcards
1
Q
What can the court now order under CPR
A
The overriding objective, which enables the court to deal with cases justly and at a proportionate cost, now involves (so far as is practicable) promotion or use of alternative dispute resolution
2
Q
What are the court’s new active case management powers re ADR
A
ordering or encouraging the parties to use, and facilitating the use of, alternative dispute resolution
3
Q
What can the court now order re ADR
A
That parties engage in it (CPR 3)
4
Q
What must now be dealt with by directions in fast and intermediate track cases?
A
Whether to order or encourage parties to engage in ADR
5
Q
What must the court now consider in multi-track cases when giving directions?
A
whether to order or encourage the parties to engage in alternative dispute resolution
6
Q
Which interim apps are subject to the longer procedure?
A
- summary judgment
- interim payments
7
Q
How far in advance of CMC should disclosure report be served?
A
14 days before (unless PI - not required)
8
Q
What must disclosure report include
A
- brief description of which docs exist / may exist that are / may be relevant
- verified by statement of truth
- etc.
9
Q
How far in advance of CMC should draft directions be served?
A
7 days
10
Q
When are budgets filed and what else is required?
A
- £50k or less - with DQ
- More than £50k - 21 days before CMC
Must be verified by a form of statement of truth
11
Q
When are budget discussion reports filed?
A
Filed and exchanged usually 7 days before CMC
12
Q
What are the two things the court could give following a CMC?
A
- directions order
- costs management order
13
Q
What do parties indicate in budget discussion report
A
a) figures which are agreed / not agreed for each phase of litigation
b) brief summary of grounds of dispute
14
Q
Courts within the HC Chancery Division
A
- Business list
- Revenue list
- Insolvency & companies list
- Competition list
- IP list
- Property, trusts & probate list
BRICIP
15
Q
Courts within KBD of HC
A
- Commercial (e.g. complex business cases, fraud, arbitration - usually international)
- Administrative
- Circuit Commercial (e.g. contracts, banking, professional negligence)
- Admiralty
- Technology & construction
& General list
CACAT
16
Q
Address of Recorders and which court they sit in
A
- Your honour
- In County Court
17
Q
Address of Circuit Judges and which court they sit in
A
- Your honour
- In County Court
18
Q
Address of High Court Masters and which court they sit in
A
- Judge
- High court
19
Q
Address of HC Judges and which court they sit in
A
- My Lord / My Lady
- High Court
20
Q
Address of CA Judge
A
My Lord / Lady
21
Q
Address of Supreme Court Justice
A
My Lord / Lady
22
Q
Enquiry agents
A
Essentially private investigators who can provide thorough info on individuals / companies
cons - expensive
23
Q
Other options to investigate means
A
- company searches
- land charges register
- individual insolvency register
- register of judgments, orders & fines
24
Q
What can be used to formally ask the other side to admit particular factual point in issue
A
Notice to admit facts
25
General amendments to statements of case if already served
Only with:
* permission of the court, or
* written consent of all other parties
26
General amendments to statements of case if not been served
No permission required
27
General amendments to SOC after expiry of LP
Only allowed in 4 circumstances:
* to **add / substitute new claim** if it arises out of the *same or substantially the same facts* as existing claim
* correct a **genuine mistake** as to name of party
* **alter capacity** in which a party claims
* when original **set off / counterclaim** raised by amendment
28
Amending, removing, adding or substituting parties if SOC already served
Court's permission required (also depends on whether made within / outside LP)
29
Amending, removing, adding or substituting parties if app made within LP
If **desirable**:
* to add new party to *resolve matters in dispute*
* to remove a party
* to substitute a party where the *existing party's interest or liability has passed to them*
30
Amending, removing, adding or substituting parties if app made outside LP
* **Proceedings** must have been brought **within LP**, **AND**
* Original party **named by mistake**, *or*
* Original party **died** / subject to **bankruptcy** order, *or*
* Claim **cannot be properly carried on without new party**
31
Is permission required to file a classic counterclaim?
Not if filed at same time as defence - otherwise needed
32
Is permission required to bring counterclaim against another person that's not C?
Always
33
Is permission required to bring a claim for a contribution or indemnity from an existing party?
* Not if filed and served at same time as defence, *or*
* If additional claim is made against party added to main claim *at a later date*, **within 28 days** of that party filing its defence
34
Is permission required for other additional claims?
Not if filed at same time as defence
35
Mediation description
* Confidential process intended to facilitate the resolution of disputes through the medium of an impartial third party - the mediator.
* Will typically involve parties being in separate rooms and mediator shuttling back and forth with proposals
* Mediator has no authority to make any decision which is binding on the parties
* Any docs / representations made / relied upon by any parties to mediation are without prejudice (i.e. content of the mediation remains confidential and will not be made known to the court)
* Involves settlement by agreement between the parties
36
Advantages of mediation
* Confidential (even if resolution not reached)
* Friendly
* Parties more §involved
* Flexible (no set process)
* Cheaper than litigation
* Speedy
* Preserves relationships
* Settlement terms can be more creative
* Parties can return to court if settlement not reached
37
Disadvantages of mediation
* **Not binding**
* Risk of parties withdrawing
* No formal rules on disclosure
* Unless contract between parties, not enforceable by courts
* All parties must agree to a proposed resolution
* Can increase costs if parties unwilling to cooperate
* No ‘day in court’
38
Descrioption of arbitration
* Process by which a dispute is resolved by an impartial adjudicator OR panel of 3 arbitrators whose decision the parties to the dispute have agreed to be final and binding.
* By agreeing to arbitrate disputes, parties are agreeing to oust the jurisdiction of the court to hear the matter, and to give jurisdiction to a different impartial party (the adjudicator) instead
39
Advantages of arbitration
* **Binding**
* **Confidential**
* Arbitrators’ professional expertise
* **Quicker** than trial
* More **flexible** than court
* **Preserves relationships**
* Party can apply to HC to enforce a final arbitral award in the same way as a party is free to return to the court to enforce a judgment
* **Easier enforcement abroad**
40
Disadvantages of arbitration
* **Expensive**
* **Less friendly**
* **Limited scope to challenge decisions** (ONLY where there is a serious irregularity in the proceeding, tribunal or award which caused substantial injustice to the applicant)
o App must be made within 28 days of award
o Serious irregularity can include errors on points of law
* **Less prescriptive rules** re disclosure
* More **limited remedies / powers** than court
41
How does arbitration compare to litigation
* Similar to litigation but quicker & without the need for CPR’s formal requirements & timetables
42
Advantages of early ADR
* Greater saving of costs in event of success
* Better relationships and information
43
Advantages of later ADR
* Parties will **better understand each other's case** (but should be clear by SOC finalisation)
* Parties will **better understand the evidence each party has available** (but rarely justifiable to wait until available)
* If party engages too early, **may have incurred costs in a claim that isn't genuine**
44
Order to obtain info - what it requires and when by
* Requires judgment debot to attend court to provide info about means / any matter re information needed to enforce judgment or order
* Must be served personally & ordered to attend court **within 14 days** of hearing *unless court orders otherwise*
* Must contain penal notice i.e. may be in contempt of court / imprisoned / fined if do not comply
45
Can a judgment creditor use more than one enforcement method?
Yes
46
Where must taking control of goods order be commenced
* £5k or less - must be in HC (writ)
* Less than £600 - must be in CC (warrant)
* Inbetween - can choose
47
Initial steps usually taken re enforcement
1. Investigate debtor's means
2. Conduct company search (will reveal solvency, assets, charges etc.)
3. Apply for official copies from LR
4. Searched against other relevant registers
5. Instructed an enquiry agent
*as examples*
48
TCGO exemptions
1. Tools of trade up to £1,350
2. Basic domestic items
49
Once the writ / warrant has been delivered, what are 3 stages of TCGO procedure
1. Give notice to judgment debtor of enforcement (7 clear days before taking goods)
2. Entering premises and securing goods
3. Sale of the goods (unless payment made)
50
Third party debt order procedure
1. 3rd party searches for & discloses info to court & judgment creditor
2. 3rd party or objecting judgment debtor files and serves written evidence stating grounds for objection
3. **Interim order made without notice** to judgment debtor (served on 3rd party first, preventing them making further payment)
4. **Interim order served on judgment debtor** & followed by **notice of hearing**
5. Court decides whether to make **final order**
51
Effect of charging order
Remains in place until property is sold, at which point debt will be paid using sale proceeds and charge removed as part of process of selling property
*NB: if they want money quickly, can apply to court to order sale*
52
Summarised procedure to obtain charging order
1. Interim charging order
2. Final charging order
53
Effect of attachment of earnings order
1. Judgment debtor's salary deducted by employer
2. Deductions paid into court for onward transmission directly to judgment creditor
54
Summary of attachment of earnings procedure
1. Judgment creditor files application
2. Served on debtor who should reply to court
3. Court may make order (without attendance of either party)
4. Order served on debtor and employer who is required t deduct
*NB: County Court only*
55
Potential issue with attachment of earnings order
If debtor changes jobs - need to start again with process
