Pre-action steps

Question 1

1st Interview with client

Answer 1

Alternative procedures should always be considered at 1st Interview and reviewed regularly.

Question 2

Case Analysis

Answer 2

Investigate what the claim is about.
Is there any other way to resolve it?
If litigation is necessary, when are where proceedings should commence.
Time period - Claimant - limitation period which varies according to cause of action.
Defence - if you can run any defence (technical defence) based on expiry of limitation period.
Need to show client:
1) Need to try and settle
2) Options available
3) Possibility of costs sanctions

Question 3

Costs sanctions

Answer 3

Imposed by court if you don’t participate in ADR

Question 4

When should ADR be used?

Answer 4

ADR should be used unless:
1) It is obviously inappropriate e.g because an injunction is required
2) The other party is unlikely to co-operate in the process
3) The other party cannot be trusted to comply with an award

Question 5

Mediation - Definition

Answer 5

The parties will agree an independent third person/body who will act as a go-between known as a mediator. They will be sent written statements from both parties and thereafter will discuss the case with them on a without prejudice basis.
Propose it to O/S by letter or email.

Question 6

Mediation - Advantages

Answer 6

• Cost and speed.
• Flexibility - parties can choose the procedure to be followed.
• There are no legal requirements
• Privacy - Preserves a business relationship
• Commercial reality - e.g discounts on future orders

Question 7

Mediation - Disadvantages

Answer 7

• There are occasions where mediation is simply not appropriate such as where the client needs a ruling on a point of law or if an injunction is required.
• Disclosure - risk that the parties may resolve the dispute without knowing all the facts leading to an unjust decision.
• Privacy - if they want their reputation fixing

Question 8

Mediation - What happens if they reach a decision?

Answer 8

Even if an agreement is reached it is not automatically binding as the client cannot enforce this like a court judgement. If the parties do agree to terms they have entered into a contract. If one of the parties does not carry out that contract they may be sued for the breach

Question 9

Arbitration - Definition

Answer 9

It is a substitution for litigation and once a party has agreed to be subject to it they cannot take advantage of the normal court processes.

Question 10

Arbitration - When does it arise?

Answer 10

1) Contractually bound. Many business contracts contain a clause requiring the parties to submit to arbitration in the event of a dispute. E.g shipping or construction
2) Might agree to arbitration once a dispute has arisen

Question 11

Arbitration - Procedure

Answer 11

Dispute referred to independent arbitrator.
Process will be adopted but it will be less formal than court.
Once arbitrator has reached a decision it is binding

Question 12

Arbitration - Advantages

Answer 12

• Cheaper and quicker
• Less formal.
• Privacy
• Solutions are more practical
• Binding

Question 13

Arbitration - Disadvantages

Answer 13

• Might not receive the depth of investigation it would receive in the courts.
• Certain remedies such an injunctions are not available.

Question 14

Arbitration - Enforceability

Answer 14

Winning party can apply to high court for permission to enforce arbitration award

Question 15

Litigation - Definition

Answer 15

If the parties either cannot or will not engage in ADR then they will have to proceed by way of litigation through the courts. Once done so neither party can withdraw without paying the opponents costs. If the parties are unable to negotiate a settlement the court will impose its own solution that may be enforced by the successful party.

Question 16

Judges - District judges

Answer 16

Deal with majority of interim applications and they have jurisdiction to hear trials where the amount involved does not exceed £25,000

Question 17

Judges - Circuit judges

Answer 17

Trials In county court for amounts in excess of £25,000.

Question 18

Judges - High Court judge

Answer 18

Trials in high court for amounts in excess of £25,000

Question 19

Overview of a civil claim - Steps of litigation

Answer 19

Stage 1 - Pre-commencement of proceedings
Stage 2 - Commencement of the action
Stage 3 - Interim matters
Stage 4 - Trial
Stage 5 - Post-trial

Question 20

Step 1 - Pre-commencement of proceedings

Answer 20

• What are the client’s objectives?
• Evidence to confirm the viability of the claim and the prospect of success.
• Consideration must be given to ADR.
• Costs should be addressed.

Question 21

Step 1 - Pre-action protocols

Answer 21

The parties must establish what issues are in dispute, share info. that is available to them concerning these matters and endeavour to resolve the issues (ADR).
Immediately after collecting sufficient evidence to substantiate a claim, the potential claimant should send the defendant a letter details the claim. This letter must contain info. about the claimant, a brief outline of the claimant’s grievance against the professional and if possible a general indication of the financial value of the potential claim. The defendant sends a letter of response and/or letter of settlement within 14 days in a straightforward claim and 3 months in a complex one.

Question 22

Step 1 - Pre-action protocols - Debt claims

Answer 22

Does not apply for business to business debts. The potential claimant must give full information on the debt owed, including an up-to-date statement of account with details of interest and charges, and how the debt can be paid. The standard Reply Form, Information Sheet and Financial Statement forms that are annexed to the protocol should also be included. Debtors have 30 days to respond

Question 23

Step 1 - Pre-action protocols - Professional Negligence

Answer 23

Notify the professional in writing. This Preliminary Notice contains information about the claimant, a brief outline of the claimant’s grievance against the professional and, if
possible, a general indication of the financial value of the potential claim. The professional should be instructed to inform their insurers immediately and to acknowledge the notice in
writing within 21 days of receipt. Next, the claimant should write a Letter of Claim giving full details of the issues and attaching key documents. The professional must acknowledge this in writing within 21 days of receipt.
Thereafter, they have three months to investigate and to respond. The letter of response sets out whether they admit the allegations and if not why with documents.

Question 24

Step 2 - Commencement of the claim

Answer 24

Proceedings are commenced by a claim form which must be served on the defendant together with full details of the claim called particulars. If the defendant wants to contest the claim they are required to file at the court and serve on the claimant a defence. The court will allocate the matter to a track.

Question 25

Step 3 - Interim matters

Answer 25

Directions are given to the parties listing all the steps they must take to prepare for trial and a strict timetable is imposed as to when each step must be taken.
Includes the parties disclosing any relevant documents that are in their possession and that impact upon the case. Evidence the parties wish to rely on must be exchanged and costs are scrutinised.
The parties may apply to the court for any specific order which might be required e.g to compel an opponent who has neglected to take a required step to do so.

Question 26

Step 4 - Trial

Answer 26

The judge will hear the evidence at the trial and make a decision as to the outcome, resolving all issues of liability and quantum (damages). Costs.

Question 27

Step 5 - Post-trial

Answer 27

A party who is unhappy with the judgment may decide to appeal all or part of the trial judge’s decision. I
f the damages and/or costs are not paid as required the party will have to apply to the court to enforce the judgment.