Resolving A Dispute Through A Civil Claim

Question 1

What preliminary considerations must the solicitor explore and give consideration to before advising the client to issue proceedings?

Answer 1

• jurisdiction and governing law
• limitation
• where there is a legal cause of action and if so the merits of the client’s claim
• who the claimant and defendant are and the nature of their financial circumstances

Question 2

How does a solicitor know which country’s laws apply to the claim?

Answer 2

If there is an express declaration in a contract that the law of England and Wales applies this is the position.
If there is not an express declaration the parties must follow specific rules to determine jurisdiction. There are different rules depending on whether the dispute is inside or outside the EU and whether it is a contractual or tortious dispute

Question 3

What are the rules for claims outside the EU in terms of jurisdiction?

Answer 3

It would have to be settled by the court by way of a preliminary issue before proceedings were commenced

Question 4

What are the rules for claims inside the EU in terms of jurisdiction?

Answer 4

For contract disputes in the EU:
- country where the seller/supplier has their habitual residence
- for property disputes, where the property in dispute is located
For torts in the EU:
- country in which the damage has occurred/is likely to occur

Question 5

Where can proceedings be commenced?

Answer 5

If the defendant is located in the EU and if there is a specific clause in the contract that specifies the location of the court in which a dispute will be heard then the proceedings will be commenced there. Where no express declaration exists the basic rule is that proceedings will be issued in the local court to where the defendant it domiciled if an individual or where the registered office is if it is a company. The claimant can elect to have the case heard in the state where the contract was due to be performed or where the damages relating to the tort incurred

Question 6

What is the limitation period for contract claims?

Answer 6

6 years from the date of the breach of contract

Question 7

What is the limitation period for torts excluding personal injury and latent damage cases?

Answer 7

6 years from the date the damage occurs

Question 8

What is the limitation period for torts of personal injury?

Answer 8

3 years from the date the cause of action occurs or date of knowledge of the person injured, whichever is later

Question 9

What is the limitation period for torts of latent damage?

Answer 9

6 years from the date the damage occurred or 3 years from the date of knowledge but the claim must be brought within 15 years after the negligent act or omission

Question 10

What is latent damage?

Answer 10

Damage that is not immediately obvious

Question 11

What happens if a claim is brought outside a limitation period?

Answer 11

The defendant has a complete defence and the claim will not proceed

Question 12

What happens if a solicitor is instructed by a client on the day that the limitation period is due to expire?

Answer 12

The CPR do allow a party to ‘issue protectively’ which means that a claim would be lodged with the court but not served on the defendant up to a maximum of 4 months after proceedings are issued. This gives the solicitor time to conduct preliminary investigations and explore ADR before the formal court process commences whilst protecting the client’s interest

Question 13

What are the pre-action rules designed to do?

Answer 13

Encourage early resolution ensuring that litigation is only ever a last resort for the parties

Question 14

What are the objectives of the pre-action conduct?

Answer 14

• understand each other’s position
• make decisions about how to proceed
• try to settle the issues without proceedings
• consider ADR to assist with settlement
• support the efficient management of proceedings
• reduce the costs of resolving the dispute

Question 15

What are the common steps that should be taken prior to proceedings being issued?

Answer 15

• the claimant should write to the defendant with concise details of the claim
• the defendant should respond within a reasonable time - 14 days for a straightforward case and no more than 3 months. They should confirm whether the claim is accepted and if not, why not and whether there is to be a counterclaim with details of such claim
• the parties should disclose key documents relevant to the dispute

Question 16

Are there any circumstances in which the limitation period does not start to run?

Answer 16

If the claimant is a child or is under a legal disability. The limitation period will only start once the child reaches 18 or the claimant is no longer under the disability

Question 17

What are the preliminary considerations for the use of the Welsh language in civil proceedings?

Answer 17

• conducting a hearing in Wales entirely in the Welsh language on an ad hoc basis and without notice applies when all parties involved consent
• in every case in Wales in which it is possible that the Welsh language may be used by any party or witness or document, the parties must inform the court
• any document having connection with Wales may be in English or Welsh but the parties must inform the court as soon as practicable if in Welsh
• if a party fails to comply and costs are incurred a costs Order may be made

Question 18

If a dispute does not have a relevant pre-action protocol what should parties follow?

Answer 18

The practice direction on pre-action conduct and protocols (PDPACP)

Question 19

What are the consequences for failing to follow a pre-action protocol or PDPACP without good reason?

Answer 19

• an order that the party at fault pays the costs of the proceedings or part of the costs
• an order that the party at fault pay those costs on an indemnity basis
• if the party at fault is a claimant who has been awarded a sum of money, the court could deprive them of interest
• if the party is the defendant and the claimant has been awarded a sum of money interest could be awarded at the higher rate (not exceeding 10%)

Question 20

What does an indemnity basis mean?

Answer 20

If costs are awarded by the court on the indemnity basis, any disputes between parties as to the value of the costs will be resolved in favour of the receiving party and there is no requirement for costs to be proportionate