Resolving Dispute Through Civil Claim

Question 1

What are the factors that need to be considered before issuing proceedings of a civil claim?

Answer 1

Can the claim be brought at all?
Who are teh parties?
Does the defendnat have the means to pay a judgement?
What are the merits of the case?
What steps must be taken before proceedings are issued?

Question 2

What is the Limitations Act 1980?

Answer 2

This prescribes the strict time limits with which the claimant must comply.

If they are missed, the claim will be “statute barred”

Question 3

What is the reason for limitation period?

Answer 3

This is to prevent a potential defendnat remaining under constant threat of litigation, and to ensure witnesses are reliable

Question 4

What is the effect of limitation?

Answer 4

If a party has MISSED the limitation period, the defendnat will have a technical defence to the claim. This means that if the court agrees that the claim is statute barred, the claimant will NOT succeed in litigation.

Question 5

What is the limitation period for contract and tort?

Answer 5

6 years from the date of the cause of action to commence their proceedings.

Question 6

Which sections in LA 1980 show the basic rule of limitation periods?

Answer 6

Ss 2 and 5

Question 7

What is the limitation period for personal injury?

Answer 7

3 years

Question 8

When does the limitation period start to run with personal injury?

Answer 8

From the cause of action

Or

From the date of knowledge of the person injured

Or

When children turn 18 years of age

Question 9

What are the limitation periods for a latent damage in negligence?

Answer 9

6 years from date of cause of action

Or

3 years from date of knowledge of the damage,

BUT

No later than 15 years after date of negligent act/omission

Question 10

Which section of LA sets out latent damages limitation period?

Answer 10

S 14A

Question 11

What is a contractual limitation?

Answer 11

This is when a different limitation period is SPECIFIED in teh contract.

Claim should be commenced within this period

Question 12

Can the limitation period e extended?

Answer 12

General rule is no, they cannot proceed.

Although, extensions may be available in EXCEPTIONAL circumstances

Question 13

What are parties to a claim?

Answer 13

Claimant is the party who starts the case.

Defendant is the party whom proceedings are brought against.

Question 14

Can there be more than 1 defendant?

Answer 14

Yes, if employee commits tort at work, then defendant can be employee and employer.

If consumer has a cause of action, both retailer and manufacturer.

Question 15

What are the special safe stares in place for children?

Answer 15

In law they are considered to be unable to make decisions required of a party to court proceedings, therefore MUST have a litigation friend, to act on their behalf. (Parent etc)

Question 16

How should defendants be sued?

Answer 16

If individual, sole trader, partnership, LLP, company etc - need to check HOW they entered into a contract, therefore know how to sue them.

Question 17

How do you make sure the defendant is worth suing?

Answer 17

Suing a defendant who s on the verge of either bankrtucy/lquidation is pointless.

Therefore, search at companies house of a company, a bankruptcy search for individual, or instruct an inquiry agent, and use various internet searches to find out.

Question 18

What are the different types of claims?

Answer 18

Specified claim

Unspecified claim

Question 19

What is a specified claim?

Answer 19

A claim specified for a fixed amount of money.

Eg, a claim for a debt owed

The amount is ALREADY KNOWN, the figure can be calculated by maths.

Question 20

What are unspecified claims?

Answer 20

If the court have to CONDUCt an investigation to determine the amount of money payable, the claim is UNSPECIFIED< - even if the claimant puts forwards some figures.

Question 21

What is the cause of action?

Answer 21

This is the LEGAL BASIS of a claim.

Breach of contract/negligence.

Question 22

What are the sections of case of action necessary for a breach of contract? ?

Answer 22

Existence of a contract
terms relied on
Breach of those terms
Consequences of breach
Damages and loss

Question 23

What is pre-action procedure?

Answer 23

Before issuing court proceedings, parties are required to comply with various pre-action rules : pre-action protocols.

Question 24

What are examples of per-action protocols that have been developed?

Answer 24

Debt claims
Personal injury
Construction and engineering
Professional negligence

Question 25

What happens if there is no relevant protocol for pre-action procedure?

Answer 25

Then you ave to follow the Practice Direction on Pre-Action Conduct and Protocols, PDPAC

Question 26

What is the purpose of practice direction and pre-action protocols?

Answer 26

The objective of them is to INIIATE and INCREASE pre-action CONTACT between the parties.

Encourage better and earlier exchange of information.

Question 27

What are the prnciples/elements of PDPAC that are common to ALL?

Answer 27

Litigation should be a last resort

Parties should exchange sufficient information to:
Understand each position
Make decision about how to proceed
Try to settle issues without proceedings
Consider form of AR to assist with settlement
Support management
Reduce costs

Steps should include:
Claimant writing to defendnat
Defendant responding with in reasonable time
Parties disclosing key documents relevant

Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve legal, factual and expert issues

Where a dispute has not bee resolved, they should review their positions and see if proceedings can be avoided

If a dispute proceeds to litigation, court will expect the parties to have complied with these

Question 28

What is para 8 of PDPAC?

Answer 28

Instructs the parties to give consideration to ADR

Question 29

What includes reasonable and proportionate steps taken during PDPAC?

Answer 29

Claimant writing to D with concise details of claim

Summary of facts, due sum, how amount is calculated

D must rely within reasonable time, 14 dats on simple, 3 months in complex

Key documents should be disclosued

Question 30

What are the consequences for failing to follow the terms of PDPAC?

Answer 30

May lead to sanctions later on.

This can include an order:

That party at fault pays SOME or AL of opponents costs (indemnity basis)

Depriving claimant hwo is at fault of some or ALL of the interest they may be rewarded on damages recovered

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

Question 31

What are pre-action protocol for debt claims?

Answer 31

PPDC, per action protocol for debt claims.

Applies to any business including sole traders, that brings a claim against a debtor who is INDIVIDUAL or sole trader

It does NOT apply to B2B debts.

Potential claimant must give full information on debt owed,a dn statement of accounts, and how debt can be paid.

30 days to respond

Question 32

What are the pre-action protocol for professional negligence?

Answer 32

Party is encouraged to notify the professional in writing of any intended claim (preliminary notice), with information about claimant, outline of grievance and indication of financial value.

Must acknowledge notice within 21 days

Claimant should write letter of claim ,with full details of issues and key documents. Professional must acknowledge within 21 days.

3 months to investigate and respond

Letter of response sets out if professioanl admits, and if not, why. Or letter of settlement.

If letter of response denies claim, and no eltter of settlement, it is open ot claimant to start court proceedings.

If not, they should instigate negotiations and resolve within 6 months of eltter of acknowledgment.

Question 33

Which country’s laws apply during dispute resolution?

Answer 33

All contracts should have worded clause, stating what law will govern contract.

Parties will be able to nominate the governing law of their choice, but there re exceptions.

UCTA contains requirements that apply to the contract regardless of any agreement to the contrar

If the agreement has been reached in ADVANCE as to which country’s laws apply to claim, caes will proceed with them.

Question 34

Where can proceedings be commenced (Hague Convention)

Answer 34

2005 Hague Convention and

Requires the court designated in an exclusive jurisdiction agreement, to hear the case and for any proceedings in another contracting state to be dismissed.

Question 35

Where can proceedings be commenced (common law)?

Answer 35

If Hague convention doesnt apply, the common law is used.

Jurisdiction may be established by serving the defendnat within jurisdiction (therefore Enga nd Wales).

However, court may still decline reduction (if D is outside jurisdiction, permission from court must be obtained)

Even if claimant does not have any connection with this court, they may issue proceedings here.

Question 36

If service of claim is within engaland and wales, can the courts hear it?

Answer 36

Yes, the courts can hear any proceedings if the claim form was served on D while they were present in these countries.

Question 37

If the service of claim was given OUTSIDE eng and wales, can the court proceed?

Answer 37

If proceedings are issued and D cannot be served with documetns IN eng and wales, the permission of the court must be obtained to serve them OUTSIDE the jurisdiction.

This may be granted if the contract was made or breached in Eng air Wales,

Or in tort, the act causing the damage, was committed in Eng and Wales, or loss was sustained here.