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DR > Introduction to dispute resolution > Flashcards

Introduction to dispute resolution Flashcards

1
Q

What are the civil courts of England and Wales?

A

County Court

High Court

Court of Appeal

Supreme Court

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2
Q

What are the first instance courts?

A

The County Court and the High Court - claims are started in these courts

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3
Q

When can claims be heard in the High Court?

A

Claims cannot be commenced in the High Court unless their value is more than £100,000 or £50,000 or more in the case of PI claims.

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4
Q

How many County Courts are there in the UK?

A

One national County Court and 170 County Court hearing centres

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5
Q

Where does the High Court sit?

A

In the Royal Courts of Justice but there are over 130 District Registries.

Claims involving disputes in London must be commenced in the RCJ, other cases can be heard in the RCJ or district registries.

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6
Q

What divisions is the High Court split into?

A

Chancery Division

KBD

Family Division

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7
Q

What are the specialist courts within KBD?

A

General KBD list

Administrative Court

Planning Court

Commercial Court

Circuit Commercial Courts

Technology and Construction Court

Admiralty Court

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8
Q

What specialist courts/lists sit within the Chancery Division?

A

Insolvency and Companies List

Revenue List

Competition List

Business List

Property, Trusts and Probate List

Intellectual Property List

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9
Q

What are the business and property courts?

A

Commercial Court

Circuit Commercial Courts

Technology & Construction Court

Admiralty Court

Financial List

Insolvency and Companies List

Revenue List

Competition List

Business List

Property, Trusts and Probate List

Intellectual Property List

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10
Q

What does the General KBD list deal with?

A

covers broad areas, mainly claims for damages in respect of PI, professional negligence, breach of contract, non-payment of debt, and other matters not failing within specialist courts/lists.

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11
Q

What does the Administration Court deal with?

A

administrative law, lawfulness of acts and omissions of the state – mainly judicial review.

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12
Q

What does the Planning Court deal with?

A

appeals/applications relating to planning permission, highways, rights of way and CPOs

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13
Q

What does the Commercial Court deal with?

A

complex cases arising out of business disputes, in particular arbitration, aviation, banking and financial markets, fraud, insurance, shipping – often international disputes.

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14
Q

What does the Circuit Commercial Court deal with?

A

Commercial contracts, sale of goods, insurance, banking, professional negligence.

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15
Q

What does the Technology and Construction Court deal with?

A

construction, engineering, computers, software, environmental, public procurement.

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16
Q

What does the Admiralty court deal with?

A

shipping and maritime

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17
Q

What courts are not within the business and property courts?

A

General KBD List

Administrative Court

Planning Court

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18
Q

What is some key facts about the CoA?

A

Based in the RCJ but has occasional sittings elsewhere in England and Wales

Consists of a Civil and Criminal Division

In practice the CoA is the final court of appeal for many cases

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19
Q

When can an appeal be heard in the Supreme Court?

A

If the issue raised is of general public importance

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20
Q

What judges sit in the County Court?

A

Circuit Judges

Recorders (Part-time circuit judges)

District Judges

Deputy District Judges (part-time District Judges)

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21
Q

Who is called `judge’?

A

District Judges

Deputy District Judges

High Court Masters

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22
Q

Who is called `Your honour’?

A

Circuit Judges and Recorders (part-time Circuit Judges)

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23
Q

What judges sit in the High Court?

A

High Court Judges

High Court Masters

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24
Q

What judges sit in the CoA?

A

Judges of the Court of Appeal

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25
Q

What judges sit in the SC?

A

Justices of the Supreme Court

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26
Q

What judges are called my lord' or my lady’?

A

Justices of the Supreme Court

Judges of the CoA

High Court Judges

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27
Q

Who is the Lord Chief Justice?

A

the most senior member of the judiciary. Represents the views of the judiciary of England and Wales to Parliament and Government and leads in relation to the welfare, training and guidance of the judiciary and the deployment of judges across England and Wales.

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28
Q

Who is the Master of the Rolls?

A

President of the Civil Division of the Court of Appeal, a judge of the Court of Appeal, and second in judicial importance to the Lord Chief Justice.

29
Q

Who is the President of the Family Division?

A

Head of Family Justice, member of the Court of Appeal.

30
Q

Who is the President of the KBD?

A

Head of the King’s Bench Division, member of the Court of Appeal.

31
Q

Who is the Chancellor of the High Court?

A

Head of the Chancery Division, member of the Court of Appeal.

32
Q

What are solicitors rights of audience

A

Solicitors can carry out advocacy in the Magistrates Court, County Court, Tribunals and Appeal Tribunals.

Solicitors are NOT generally authorised to carry out advocacy in the `Higher Courts’ which includes High Court, Supreme Court and Court of Appeal. If Solicitors wish to carry out advocacy in the High Courts they need to obtain Higher Rights of Audience.

33
Q

What are the four main concerns in civil litigation?

A

Rule 1 of the CPR: the overriding objective

Civil Procedure Rules 1998

Burden of proof

Costs

34
Q

What is the purpose of the Civil Procedure Rules 1998?

A

The Civil Procedure Rules govern the procedure for litigation and are supplemented by Practice Directions.

35
Q

What is the overriding objective and what does it involve?

A

To enable the courts to deal with cases justly and at a proportionate cost. This involves:

  1. ensuring parties are on an equal footing;
  2. saving expense
  3. dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party
  4. ensuring the case is dealt with expeditiously and fairly
  5. allotting an appropriate share of the courts resources to each case
  6. ensuring compliance with the rules, practice directions and orders
36
Q

What is the position in relation to the participation of vulnerable parties or witnesses?

A

The overriding objective requires that parties and witnesses can participate fully in proceedings, and there are specific provisions relating to vulnerable parties and witnesses.

The vulnerability could be caused by being young, suffering from a mental or physical disability and having language difficulties.

The court should take all proportionate measures to:

a) Identify the vulnerability of parties/witnesses; and

b) Give directions or make appropriate provisions to facilitate participation e.g. giving appropriate directions as to how advocates should conduct themselves.

37
Q

What does the PD state in relation to using the Welsh language?

A

The PD applies to cases in the civil courts of Wales or having a connection to Wales.

The PD does not alter existing practice so that a hearing in Wales can be entirely held in the Welsh language on an ad hoc basis and without notice when all the parties and witnesses consent at the time.

Where it is possible that Welsh may be used by any party, the court must be informed so that arrangements can be made for the management and listing stages of the case in:

The directions questionnaire

The pre-trial checklist

An interim hearing when the court is considering whether to give case management directions

Where the Welsh language is to be used, the court will ensure that the case is before a Welsh speaking judge whenever practicable and in a court with translation facilities. Witnesses may be sworn in English or Welsh. Any document placed before the court may be English or Welsh.

38
Q

What are the two important cost considerations?

A
  1. The costs that a party might incur in pursuing litigation
  2. Why a party is at risk of being ordered to pay an opponents costs
39
Q

What costs might a party incur in pursuing litigation?

A

Solicitor costs but also disbursements such as:

Court fees

Counsel fees

expert fees

other costs e.g. travel of legal representatives

40
Q

Why is a party at risk of being ordered to pay an opponents costs?

A

The court has a broad discretion to determine whether one party should pay the other party’s costs and if so how much should be paid.

The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party.

However, the court can make a different order and will take into account a wide range of factors including the conduct of the parties.

If the court does determine one party should pay the other party’s costs, it will only allow a reasonable and proportionate sum to be recovered.

41
Q

What is the purpose of a case analysis?

A

It will inform the client’s decision to bring a claim or how to respond to a claim

Inform the strategy for pursuing the client’s case

Assist to estimate and budget costs

42
Q

Who has the burden of proof?

A

The burden of proving any issue of fact or law generally falls with the party asserting it.

43
Q

What is the standard of proof?

A

It is on the balance of probabilities i.e. more likely than not to have happened.

44
Q

What does limitation mean?

A

If proceedings are not commenced within the relevant time period, the claimant will be barred from recovering damages and the defendant will have a full defence under the Limitation Act 1980.

45
Q

What is the limitation period for PI claims?

A

Claim must be made within 3 years of the latest of:

the date when causation accrued; or

the date of knowledge of the person injured

46
Q

What is the limitation period for fatal accidents?

A

a) The claim cannot be brought if the person injured could no longer bring a claim (will need to apply rules above)

b) The claim cannot be brought after 3 years from the later of:

i. Date of death; or
ii. The date of knowledge of the dependant

47
Q

What does date of knowledge mean?

A

Date of knowledge means knowing:

a) That the injury was significant;

b) That is was attributable to the alleged wrongdoing;

c) The identity of the defendant;

d) If it is alleged that the wrongdoing was by someone other than the defendant, the identity of that person ad the additional facts supporting bringing the claim against the defendant

48
Q

When can the court extend the time for limitation periods?

A

When it would be equitable to do so and the court will look at:

The conduct of the parties

The reasons for the delay; and

The effect of such a late claim on the evidence

49
Q

What is the limitation period for a claim for contribution?

A

The limitation date is two years from the date on which the right to recover contribution arose. This is calculated as:

a) The date when the judgment was given imposing liability on the first party;

b) In cases where the first party agreed to make the payment (rather than having a judgment imposed on them), the date on which the amount to be paid was first agreed.

50
Q

What is the limitation period for negligence claims?

A

This DOES NOT APPLY TO PI CLAIMS.

In negligence claims, the limitation period is extended to the later of:

a) Six years from when the causation accrued; or

b) Three years from when he had the requisite:

i. Knowledge; and

ii. right to bring a claim.

But this is subject to a long-stop limitation date of 15 years from the date of the latest negligent act/omission which caused all or part of the damage.

Date of knowledge is essentially defined the same as in PI cases, but the claimant needs to know `the material facts about the damage in respect of which damages are claimed’.

51
Q

What is the limitation period for judgments?

A

An action to enforce a judgment cannot be brought after six years from when the judgment became enforceable, nor can interest be recovered after that period.

52
Q

What is the limitation period for tort and contract?

A

The limitation period expires six years after the date on which causation accrued.

53
Q

What is the limitation extension due to disability?

A

If the claimant is under a disability at the time that the cause of action accrued, the limitation period starts to run from when the disability ends, and is:

a) 2 years in relation to contribution claims;

b) 3 years in relation to PI or fatal accident claims; and

c) 6 years in most other cases.
A person is under a disability whilst they are a minor (under 18) or lacks mental capacity.

54
Q

What is the limitation period for fraud, concealment or mistake?

A

Where the claim is:

a) Based on fraud, or;

b) Any fact relevant to the cause of action has been deliberately concealed by the defendant; or

c) The action is for relief from the consequences of the mistake

The limitation period does not start to run until the claimant discovered the fraud, concealment or mistake (or could with reasonable diligence have discovered it).

55
Q

How would you bring a claim against a partnership?

A

Claims must be brought under the partnership name as it was at the time the causation accrued.

If the partnership dissolves before proceedings are issued, the claim is made against the former partners in the name of the dissolved firm.

If it seems likely it will be necessary to seek enforcement against partners personal assets as well as the partnership assets, should set out the partnership and individual names.

56
Q

How would a claim be brought against a sole trader?

A

Commonly both the individual and trading name will be used:

John Flagstone (trading as John’s cafe)

57
Q

How would you bring a claim against an LLP?

A

It would just be against the name of the LLP:

Flagstones LLP

58
Q

How would you bring a claim against a company?

A

It would be against the full name of the company including `ltd’ etc.

A company may be represented at trial by an employee if:

The employee has been authorised to do so by the company and

The court gives permission

59
Q

In relation to trusts who can a claim be brought against?

A

A claim can be brought by or against trustees, executors or administrations.

It is not necessary for beneficiaries to be added as parties to the claim.

60
Q

Where a person who had an interest in a claim has died and that person has no PRs what happens to the claim?

A

The court may order:

a) The claim to proceed in the absence of a person representing the estate of the deceased; or

b) A person to be appointed to represent the estate of the deceased

61
Q

Where a defendant whom a claim could have been brought has died who is the claim brought against?

A

If a grant of probate or administration has been made, the claim must be brought against the PRs of the deceased

If a grant of probate or administration has not been made:

a) The claim must be brought against `the estate of’ the deceased; and

b) The claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim

62
Q

Are children and protected parties allowed to pursue claims on their own behalf?

A

No, anyone under 18 or someone who lacks capacity within the meaning of the Mental Capacity Act 2005 are legally incapable of bringing claims on their own behalf.

63
Q

How should a legal adviser make sure their client has capacity to bring or defend proceedings?

A

The legal advisors must satisfy themselves that the party has has requisite capacity to bring or defend proceedings.

Often, this will involve an assessment and report by the party’s GP

If there are legitimate concerns that a client does not have legal capacity, advice may be sought from a psychologist or psychiatrist

The court may require personal evidence of the solicitor or family and friends

64
Q

What is a litigation friend?

A

Children and protected parties are represented in civil proceedings by a litigation friend whether they are commencing or defending the proceedings.

65
Q

Who can act as a litigation friend?

A
  • someone who can fairly and competently conduct proceedings on behalf of the child or protected party.
  • have no adverse interest to that of the child or protected party; and
  • where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.
66
Q

Who is usually the litigation friend and how are appointments made?

A

The litigation friend is often a relative or a person the court has appointed on the party’s behalf.

Often appointments are made without a court order and by filing and serving a certificate of suitability.

For a protected party, the Court of Protection may appoint someone to conduct proceedings on the protected party’s behalf.

The court may make an order permitting the child to conduct proceedings without a litigation friend.

67
Q

How are documents served on children or protected parties?

A

Must be served on a litigation friend

68
Q

How should children and protected parties be referred to in the title to proceedings on documents?

A

A child is referred to in the claim form as being represented by his/her litigation friend

Alice Brown (a child, suing by Kate Brown her mother and litigation friend)

69
Q
A

DR (31 decks)

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