Introduction to dispute resolution

Question 1

Key stages of civil claim

Answer 1

Question 2

What should parties do at pre-action?

Answer 2

Attempt to resolve dispute without issuing proceedings - will state remedy/relief they seek

Question 3

What are the statements of case?

Answer 3

Claim form, particulars of claim, defence (and reply)

Question 4

What happens at case management?

Answer 4

Court manages cases to handle claims justly at proportionate costs - sets out timetable etc.

Question 5

What happens at the evidence stage?

Answer 5

Parties exchange evidence, documents, witness statements and expert reports - view one another’s

Question 6

What are the two roles judges have at the trial stage?

Answer 6

1. Determine issues of fact about which C and D disagree
2. Take facts and decide what findings entitles C to relief

Question 7

Are rules and practice directions both binding?

Answer 7

Yes

Rules are supplemented by practice directions

Question 8

What is the overriding objective of the CPR and what does it involve?

Answer 8

OO = court to deal with cases justly and at proportionate cost - involves:

• Ensuring parties on equal footing
• Saving expense
• Dealing with cases in a way proportionate to amount of money involved, importance of case, complexity of issues and financial position of each party
• Ensuring case dealt with expeditiously and fairly
• Allotting to each case an appropriate share of court’s resources, taking into account the need to allot resources to other cases
• Enforcing compliance with rules

Question 9

Who must give effect to the OO?

Answer 9

The court does through active management, and the parties will help the court do this

Question 10

What makes a party/witness vulnerable, what causes this and what should court do?

Answer 10

• Vulnerable = factor(s) adversely affect their participation in proceedings/giving evidence (e.g. inability to understand, express oneself, respond to court) - can be caused by age, language difficulties, disabilities etc.
• Court should identify vulnerability of parties/witnesses and make appropriate provisions to facilitate their participation

Question 11

What will a court ensure where the Welsh language is to be used?

Answer 11

That the case is before a Welsh speaking judge whenever practicable and in a court with translation facilities

Question 12

What costs might a party incur in pursuing litigation?

Answer 12

• Solicitor’s fees
• Court fees (issuing claim, making application)
• Counsel’s fees (will traditionally agree a fixed price for piece of work in advance, then charge on hourly basis)
• Expert’s fees (to provide evidence)
• Other costs

All apart from solicitor’s fees are generally known as disbursements

Question 13

What is the general rule on costs?

Answer 13

An unsuccessful party will be ordered to pay the costs of the successful party

But can still make different order- taking range of factors into account

Question 14

What is the limit on recovery?

Answer 14

If court decides one party pays the other’s costs, it will only allow a reasonable and proportionate sum to be recovered (and client must make up rest)

So C must keep in mind how to fund own costs as it will probably not recover all from opponent

Question 15

Look at this

Answer 15

Question 16

What is meant by case analysis?

Answer 16

An investigation of the legal issues to determine what must be proved or disproved

Question 17

How will a case analysis help?

Answer 17

• Informs client’s decision to bring a claim/how to respond to claim
• Inform strategy for pusuing client’s case
• Assist to estimate budget costs

Question 18

What are the 4 stages of case analysis? What else should be considered?

Answer 18

Considering elements of a cause of action:
1. Duty - did D owe C duty?
2. Breach - did D breach duty?
3. Causation - did breach cause loss to C?
4. Loss = was it not too remote and what is the amount of loss?

Also consider:
1. Parties - who were they? Should C bring claim against one or more parties? Are there any co-Ds to claim from?
2. Limitation issues›

Question 19

When a fact in dispute must be proved, who does the burden of proof fall on?

Answer 19

The party who asserts it

E.g.
C proves all elements of case analysis - D proves contributory negligence and why D’s version of facts is correct

Question 20

What is the standard of proof?

Answer 20

Proof on a balance of probabilities - a fact is established if it is more likely than not to have happened

Question 21

What facts must be proved?

Answer 21

The facts in issue i.e. the two parties’ conflicting versions of events

Question 22

In what situations can the court treat matters as established without evidence being brought into court?

Answer 22

1. Formal admissions (SOC, in response to notice to admit facts)
2. Presumptions (further details are unnecessary)
3. Inferences of fact (common sense conclusions)

Example of presumption - res ipsa loquitur (the facts speak for themselves); where the thing is shown to be under the management of the defendant and the accident is such that in the ordinary course of things does not happen if those who have the management have proper care, it affords reasonable evidence that the accident arose from want of care