Pre Action Consideration Flashcards
Overriding Objective
CPR 1 - Enables court to deal with cases justy and at proportionate costs o Equal footing o Saving expenses o Dealt with proportionately o Expeditiously and fairly o Appropriate share of court resources o Enforcing compliance with rules
Non specific pre-action protocol
- Claiming party should write to other side giving details of claim
- Recipient should send a response letter
o Accepting the claim
o Or rejecting the claim - Parties should disclose key documents, engage in appropriate negotiations, and make proposals for settlement.
Claim Form
CPR 7 AND 16
- Proceedings are commenced when a claim form is issued by the court at the request of the claimant.
- Part of a set of documents called statements of case
- CPR 16.2 sets out what claim form must contain
Particulars of claim
CPR 16
- Full details of claimants claim
o May be included on the claim form
o May be prepared as a separate document served with claim form, or
o May be prepared as a separate document served within 14 days of deemed service.
- Must be accompanied by notes for the respondent and the response pack
Responding to the claim
- Need not respond until particulars of claim served (except for commercial court)
- Must respond within 14 days of deemed date of service
o File an acknowledgement of service
o File or serve an admission or
o File a defence
Acknowledgement of service
CPR 10
- Wishes to defend the claim but has been unable to file a defence within 14 days of deemed service
Admission
CPR 14
- The claimant may then enter a judgement unless either party is a child or claimant
Defence
CPR 15 AND 16
- If they file an acknowledgement then they may agree an extension of up to 28 days
- Must state
o Which allegations it denies
o Which allegations it is unable to admit or deny but of which it requires proof
o Which allegations it admits
Judgement in default
CPR 12
- If defendant has not filed an acknowledgement and time has expired then may be obtained by claimant
Part 20 Claims
CPR 20
- Counterclaim
- May be done without court permission if filed with the defence
Reply
CPR 15
- Claimant
- Not necessary to file a reply as defendant has the burden of proof
- CPR 18
o For further clarification a party should make a written request
Allocation
CPR 26
- Importance and complexities of the issues and the monetary value of the claim.
- If suitable for the fast or multi-track then arties are required to file proposed directions
- May request a stay of the claim to allow for ADR – one month
Directions (CPR 26 – 29) - CPR 29.1 - Case management conference o Directions order which both parties will be bound by. o Costs management of the case
Part 36 Offers
- Realistic value of the judgement, taking into account strengths and weaknesses.
- Offer to settle at that level
- If offer is rejected but the damages awarded at trial are worse than the offer, then judge can impose cost consequences
Litigation advantages and disadvantages
Advantages Legally correct solution Precedent value Wide power of the court Process is tried and tested Solution is guaranteed Not voluntary
Disadvantages Expensive and often slow Lack of privacy Process is inflexible Solution is imposed by the court Process may be regarded as unfair No choice of judge
Arbitration advantages and disavdantages
Advantage Dispute heard by an expert and parties choice Easier to enforce abroad Private Parties have more control
Disadvantage Cost Limited rights of appeal Not always appropriate Cannot join third parties to the proceedings
ADR advantages and disadvantages
Advantage Flexible and simple process Allows active involvement Quick and cheap Preserves commercial relationships Private Commercially realistic
Disadvantage Lack of power for mediator Voluntary Solution not binding Legally correct solution less likely Not always appropriate
negotiation advantages and disadvantages
Advantage Conducive to continuing relations Quick and cheap Private Flexible
Disadvantage
No solution guaranteed
Voluntary
No precedent
Party Party Costs General rule
o Successful party’s legal costs are paid by the unsuccessful party
