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Dispute Resolution > Pre-action steps > Flashcards

Pre-action steps Flashcards

1
Q

What are the different options for dispute resolution?

A

Mediation

Arbitration

Litigation

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2
Q

What is Alternative Dispute Resolution?

A

A collective term referring to any means of settling disputes outside of the traditional litigation process.

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3
Q

When is ADR not appropriate?

A

When it is inappropriate to do so (i.e. injuction is required)

The other party is unlikely to co-operate

The other party cannot be trusted to comply with an award

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4
Q

What happens when a party does not engage with ADR?

A

Any party not engaging must serve a witness statement giving reasons within 21 days. The statement should not be shown to a judge unless questions of costs arise.

Cost penalties from the court can also arise.

Courts can now also stay proceedings or order for the parties to engage in a non-court based DR process.

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5
Q

What should solicitors advise their client about ADR?

A

They need to try and settle

Give them all available options

Advise on the possible costs sanctions if they fail to settle

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6
Q

What experience should the independent third party have during an ADR process?

A

Appropriate industry or commercial knowledge required to understand the dispute.

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7
Q

What is mediation?

A

Where parties will send a mediator (the independent third party) written statements from both parties and the mediator will then discuss the case on a ‘without prejudice’ basis.

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8
Q

What are the advantages of mediation?

A

Involvement of an independent third party
Quick at a low cost
Private
Flexible
Preserves business relationships
Ability to withdraw

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9
Q

What are the disadvantages of mediation?

A

Limited disclosure
Enforcement is not automatic

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10
Q

What is arbitration?

A

A ‘parallel’ dispute resolution system where a panel of arbitrators would make a decision.

It is governed by statute (Arbitration Act 1996).

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11
Q

How can arbitration arise?

A

In two ways:

The parties may be contractually bound and it may be contained as a clause within their business contracts.

The parties may agree to arbitration once a dispute has arisen and may choose their own arbitrator with the relevant expertise.

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12
Q

What are the advantages of arbitration?

A

Likely quicker than court proceedings and may be cheaper

The procedures are less formal

The decision is made by an impartial third party with expertise

Private and confidential

Solutions are more practical than what a court could offer

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13
Q

Is arbitration binding or non-binding?

A

Binding (as opposed to mediation)

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14
Q

What are the disadvantages of arbitration?

A

The dispute may not receive the depth of investigation it would receive in the courts

Certain remedies such as injunctions are not available.

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15
Q

How can a party enforce an arbitration decision?

A

Once a decision is made, the winning party to an arbitration can apply to the High Court for permission to enforce the award as if it was a judgment.

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16
Q

What cost liabilities there once court proceedings have commenced?

A

Neither party can withdraw without paying the opponent’s costs.

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17
Q

What is civil litigation governed by?

A

The Civil Procedure Rules 1998 (CPR) which dictates the procedure that must be adopted when pursuing a claim through the courts.

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18
Q

What courts deal with most civil disputes?

A

County Court
High Court

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19
Q

What are the stages of a civil claim?

A

1 - Pre-commencement

2 - Commencement of the action

3 - Interim matters

4 - Trial

5 - Post-trial

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20
Q

What happens in Stage 1 (Pre-commencement of proceedings)?

A

Parties should consider their objectives (legal and commercial).

They should gather evidence to confirm the viability of the claim and prospects of success.

Consider the pre-action protocols.

Potential claimant should send the proposed defendant a letter detailing the claim.

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21
Q

What happens in Stage 2 (Commencement of the action)?

A

A claim form should be commenced by a claim form which must be served on the defendant with full details of the claim.

If the defendant wishes to contest, they are required to file at the court and serve the claimant with a defence.

The court will then allocate the matter to a track.

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22
Q

What happens in Stage 3 (Interim matters)?

A

Once on a track, the court will monitor to ensure the matter proceeds towards the trial date.

Directions are given to parties listing all the steps they must take to prepare for trial and a strict timetable is imposed.

Preparations include disclosure and application to apply for any specific orders.

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23
Q

What happens in Stage 4 (Trial)?

A

Judges will hear the evidence and come to an outcome, resolving any issues of liability and quantum (damages).

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24
Q

Where are the limitation time limits set out?

A

Limitation Act 1980

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25
Q

How do you calculate a limitation period?

A

Step 1: identify the cause of action.

Step 2: ascertain the relevant limitation period for that cause of action

Step 3: identify the day the limitation period starts on, normally when the cause of action accrued.

Step 4: identify the day the limitation period expires

26
Q

What happens if a claim falls outside of the limitation time period?

A

Unless there are exceptional circumstances, the claim becomes ‘statute barred’ and the claimant is unable to bring the claim.

27
Q

When is a claim ‘statute-barred’?

A

If the limitation period was missed then the defendant would have a technical defence to the claim.

28
Q

What are the limitation periods for contract and tort claims?

A

The claimant has six years from the date of the cause of action to commence their proceedings.

For contract - this is the date the breach of contract occurs.

For tort - this is the date the tort is committed. In negligence, this is when damage occurs as a result of a breach of duty.

29
Q

What is the limitation period for personal injury claims?

A

Three years from the date of the cause of action OR the date of knowledge of the person injured.

30
Q

What is the limitation period for personal injury claims for children?

A

The same time limits apply, but the time limit does not start to run until their 18th birthday.

31
Q

What is the limitation period for a negligence claim where the damage is hidden at the date where the cause of action has happened?

A

The later of:
Six years from the date of action
Three years from the date of knowledge

BUT
No later than 15 years after the date of the negligent act or omission.

32
Q

TO REVIEW

A

Knowledge of the defendant

Knowledge of the injury caused

Knowledge

33
Q

What if a contract has a different limitation period specified?

A

The claim should be commenced within the contractually specified period.

34
Q

Can a limitation period be extended?

A

Only in exceptional circumstances e.g. where the defendant (currently imprisoned, hence why no claim was originally brought) has come into substantial monies as they had won the lottery.

35
Q

Who should be sued in a tort claim in the course of employment?

A

Both the employee and the employer, as the employer is vicariously liable for the employee.

36
Q

Who should be sued in the case of a defective product?

A

Both the retailer and the manufacturer of the defective product.

37
Q

What is a litigation friend?

A

Someone who will fairly and competently conduct court proceedings on behalf of an under 18 or a person who cannot manage their own affairs due to a mental disorder defined by the Mental Capacity Act 2005).

They must have no adverse interest.

38
Q

What checks should be considered to ascertain whether a claim is financially viable?

A

A search at Companies House for the financial position of a company

A bankruptcy search of an individual

Instructing an inquiry agent

The use of search engines

39
Q

What are the types of claims?

A

Specified claims - where the claim is specified for a fixed amount of money because the amount is already known.

Unspecified claims - where the court needs to investigate to determine the amount of money payable (usually damages claim).

40
Q

What is a cause of action?

A

The legal basis of a claim e.g. a breach of contract of negligence.

41
Q

What are possible causes of action for contract claims?

What is the purpose of damages?

A

Breach of express terms
Breach of statutory implied terms

Damages would be to put the claimant in the position they would have been in had the contract been performed properly.

42
Q

What are the possible causes of action for tort negligence claims?

What is the purpose of damages?

A

Negligence (RTAs/medical negligence)
Negligence mis-statement (inadequate advice by financial adviser)

Damages would be to put the claimant in the position they would have been in had the negligent act not occured.

43
Q

What are the possible causes of action in tortious nuisance claims?

What is the purpose of damages?

A

Excessive noise from a neighbour
Tree roots causing damage to an adjoining property
Water flooding from another’s property

Damages would be to put the claimant in the position they would have been had the nuisance not occured.

44
Q

What are the possible causes of action for a misrepresentation claim?

What is the purpose of damages?

A

When someone falsely induces another into purchasing a vehicle by false representation (e.g. a car salesman with expertise)

Damages would be to put the claimant back in the position they were in before the contract was entered into.

45
Q

What are pre-action protocols?

A

Actions to be taken prior to issuing court proceedings.

46
Q

What pre-action protocols apply if there is no specific guidance for the particular type of claim being pursued?

A

The Practice Direction on Pre-Action Conduct and Protocols contains general guidance to be followed in such cases.

47
Q

What are the key principles of the Practice Direction on Pre-Action Conduct and Principles? (6)

A
  1. Litigation is a last resort and negotiations/ADR should be considered first.
  2. Parties should exchange information to ensure they understand each other’s position and make decisions on how to proceed.
  3. The claimant should write to the defendant with concise details of the claim. The defendant should respond in a timely manner. The parties should disclose key documents in dispute.
  4. Reasonable and proportionate steps should be taken by each party to identify, narrow and resolve the legal, factual or expert issues.
  5. Where not resolved, the parties should review their positions to avoid litigation.
  6. If the dispute proceeds to litigation, the court will sanction parties who do not comply with the PDPAC.
48
Q

What sanctions can the court impose if the PDPAC is not followed? (3)

A

The party at fault pays some or all of their opponent’s costs

Depriving a claimant who is at fault of some or all of the interest they may subsequently be awarded on damages recovered

Requiring a defendant who is at fault to pay interest on any damages awarded to the claimant at a rate of up to 10% per annum above the base rate

49
Q

What happens if a person knowingly makes a false statement in any pre-action protocol documentation?

A

They may be subject to proceedings for contempt of court.

50
Q

What pre-action protocol is followed for debt claims?

A

Pre-Action Protocol for Debt Claims (PPDC)

51
Q

What type of debt claims are covered by the Pre-Action Protocol for Debt Claims?

A

Any business including sole traders

Public bodies that bring claims against debtors who are either individuals or sole traders

52
Q

What information must be given between parties under the Pre-Action Protocol for Debt Claims?

A

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 must be included.

53
Q

How long do debtors have to respond under the Pre-Action Protocol for Debt Claims before court proceedings can be issued?

A

30 days

54
Q

What pre-action protocol is followed for professional negligence claims?

A

Pre-Action Protocol for Professional Negligence

55
Q

What additional requirements are there under the Pre-Action Protocol for Professional Negligence against the Practice Direction on Pre-Action Conduct?

A

Send a Preliminary Notice to the professional

The claimant should write a Letter of Claim

The professional should respond with a Letter of Response or Letter of Settlement after investing the claim

If resolved, parties should consider negotiations/ADR on a settlement. If NOT resolved, parties should complete a review of their position (Stocktake) before proceedings are issued.

56
Q

What is a Preliminary Notice and what should it contain in respect of a professional negligence claim?

A

A letter in writing outlining any intended claim.

The letter should contain:
Any information about the claimant
A brief outline of the claimant’s grievance
Financial value of the claim

57
Q

What should a professional do once they receive the Preliminary Notice?

A

Inform their insurers

Respond to the letter within 21 days of receipt

58
Q

What is a Letter of Claim and what should it contain in respect of professional negligence claims?

What should a professional do upon receipt of such a letter?

A

A letter which sets out full details of the issues and attaches any key documents.

The professional should acknowledge this in writing within 21 days and they have three months to investigate and respond via a Letter of Response.

59
Q

What should be outlined in a Letter of Response from a professional in respect of professional negligence claims?

A

Whether they admit the allegations.

60
Q

What outcomes are there following a Letter of Response in respect of professional negligence claims?

A

If yes, a Letter of Settlement may be sent if they intend to settle all or part of the claim.

If not, the claimant and professional should try to resolve any issues within six months of the Letter of Acknowledgement.

Once all avenues are exhausted and a final ‘stocktake’ has been completed, the parties should take the claimant can issue court proceedings.

61
Q

What is the EU’s jurisdiction over proceedings issued in an English court?

A

They are no longer valid and each country will apply its own domestic rules to cases where the UK is involved.

62
Q

How do you determine which country’s laws should apply to the dispute?

A

There should be an express clause in the contract which outlines which jurisdiction should apply if a dispute arises.

Dispute Resolution (8 decks)

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