Session 1 Flashcards
What are the different types of ADR?
1) negotiation- communication process aimed at reaching agreement
2) mediation- impartial third party
3) Arbitration- instead of proceedings- give the power to determine to an independent arbitration.
Why use ADR?
Better relationships
Less expensive
Privacy/confidentiality
Saves time
Flexibility of outcomes
How do the courts encourage ADR?
There are the pre-action rules encouraging them to settle
Budget- under precedent H- include provisions for settlement negotiations
asked within the directions questionnaire
Costs- can be penalised for not trying to engage in ADR
Stay of proceedings
How is a settlement agreement recorded?
Where proceedings have not been issued- a settlement agreement
Where they have been issued- consent order (perhaps plus settlement agreement)
or a Tomlin order (plus settlement agreement)
What is commencement and service:
What is the overriding objective? this is that the parties must deal with cases justly and at proportionate costs.
What must be done pre-action?
1) limitation
a) special rules for personal injury claims-3 years of either date of injury or knowledge.
b) for other claims for breach of contract or tort, the limitation period is 6 years from when the cause of action accrues
2) pre action protocols
a) practice direction- pre action conduct and protocols
b) pre-action protocols.
Which court?
County court- PI claims less then £50,000. Non PI claims, up to £100,000
High Court for those that need the below considerations:
other claims, consider:
Value,
Complexity
Importance to the public
What happens if it is issued in the wrong court?
the court can transfer, but there may be cost sanctions.
How do we issue?
Use a claim form, taken to court. Also need to pay the court fee
Why does it matter when the claim form is issued?
This matters because of the limitation period. The date of issue stops time for limitation.
The deadline for the claim form to be served within 4 months (on midnight on the calendar day)
if outside jurisdiction- 6 months
If not ready to serve within that time- must apply for an extension of time before the time limit runs out
What are the rules governing service?
separate rules for service of the claim form and for other documents.
Method of service of the claim form:
1) personally on the defendant
2) delivering or leaving the document at a permitted address
3) first class post
4) fax
5) electronic method
6) document exchange
What about the rules relating to service of the particulars of claim?
if not served with the claim form, it must be served within 14 days of service of the claim form, but also within the validity of the claim form eg 4 months.
Can be served on the defendant by the same methods as the claim form.
When are the deemed dates of service for the claim form and other documents?
Claim form: second business day after completion of the relevant step
Other docs: Post/DX: second day after posting, if a business day (otherwise next business day)
Instant method: before 4:30 PM on business day- same day.
Otherwise, next business day
How do you respond to proceedings?
Firstly, defendant does not need to respond until they receive the particulars.
Response must come within 14 days of deemed date of service of the particulars.
3 responses:
file an:
1) acknowledgement of service
2) file a defence
3) admit part or all of the claim
Why acknowledgment of service?
This gives them additional time from the service of the particulars to claim to file a defence. Originally was 14 days, but if an acknowledgement is served- this is extended to 28 days from deemed date of service of the particulars.
This also gives an opportunity to dispute the courts jurisdiction.
If the defendant is still not ready, an extension can be agreed for a further 28 days for filing and service of the defence.
If the defendant wants to admit the claim- must be done within 14 days of DDS of particulars of claim. IF or an unspecified amount of money, quantum will need to be decided and judgement will be entered on the liability.
If no response: if properly issued, the claimant can apply for judgement in default
If wrong entered- the court must set it aside.
If correctly entered, the court may set it aside if:
1) the defendant has a real prospect of successfully defending the claim; or
2) it appears to the court that there is some other good reason why judgement should be set aside, or varied or the defendant should be allowed to defend.
How do you count time?
1) day on which period begins is not included
2) day on which period ends is included, unless period ends on an ‘event’
Periods of 5 days or less- do not count weekends
Court office closed? In time if done on next open day
What is the reason behind statements of case?
These are to set out the facts in the area that are relied on and the actual allegations made in support of that parties case.
For particulars of case, needs to set out if interest is claimed too
The options that can be raised in a defence are:
1) admit
2) deny
3) require proof
If a defendant does not respond to allegation it is deemed to have admitted it.
The defence is also when limitation, mitigation, counterclaim or set-off should be raised
All statements of claim must have a statement of truth- honest belief in the trust
If a statement of case, the other party can:
1) apply to strike it out
2) apply for summary judgement
3) ask for clarification
4) use the procedure in CPR 18- request further information: this is confined to matters which are reasonably necessary and proportionate to enable the requesting party to prepare its own case/understand opponents case- Make a request before applying to court.
Adding, removing or substituting parties
A party may amend a statement of case at any time before it is served or with the written consent of all other parties- otherwise courts permission required. To add or remove or sub a party- court permission required (not if the claim form has not been served yet).
The main test in CPR 19 is that the amendment is desirable and nobody may be added or substituted as a claimant unless they have given their consent in writing
CPR 17&19- amending statements of case
CPR 19- addition and substitution of parties
CPR 20- counterclaims and other additional claims by a defendant
CPR 20.4- defendants counterclaim against the defendant in the main claim
CPR 20.5- defendants counterclaim against the claimant and some other person
CPR 20.6 Defendants claim for a contribution or indemnity against an existing party
CPR 20.7 other claims made by the defendant
