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Dispute Resolution > sqe2 > Flashcards

sqe2 Flashcards

1
Q

Objectives of pre-action conduct and protocols

(inc what para of what - bonus points)

A

Para 3 / Practice Direction - Pre-Action Conduct and Protocol

  1. understand each other’s position
  2. make decisions on how to proceed
  3. try settle without proceedings
  4. consider a form of ADR to assist with settlement
  5. support efficient management of those proceedings
  6. reduce costs
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2
Q

steps before issuing a claim at court

A

if relevant pre-action protocol, comply with that

if not, exchange correspondence and info to comply with para 3 objectives (sep card - understand positions, make decisions, costs, consider ADR, efficient management)

Usually means:
- concise details of claim
- reasonable time to respond (14 days - 3 months)
- both disclose key docs

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3
Q

What should be included in letter before claim?

(NB: this is part of settlement stuff / before court proceedings / pre-action protocol stuff)

bonus points for paragraph and of what

A
  1. basis of claim
  2. summary of facts
  3. what wants from D
  4. if want money, how calculated

Para 6 - Practice Direction - Pre-Action Conduct and Protocol

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4
Q

what should RESPONSE to letter before claim include?

(bonus points for para)

A

Para 6 - Practice Direction - Pre-Action Conduct and Protocol

  1. whether accepted
  2. if not, reasons why
    - inc explanation as to which facts and parts of the claim are disputed
  3. whether making counterclaim, and if so, details of any counterclaim
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5
Q

what to be careful of with ADR

A

racks up costs quick (mediation arbitration)

so negotiation better where costs are low

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6
Q

what to consider if there is dispute cross-borders

A

compulsory arbitration clause?

jurisdiction clause?

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7
Q

should letter before claim be WPSTC?

A

no

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8
Q

how to begin letter before claim to other side

A

We act for XYZ of (ADDRESS!!!) in relation to their claim against you for [breach of contract relating to ….]. We refer to [specify any previous correspondence]

This letter is being sent to you in accordance with the Practice Direction on Pre-Action Conduct and Protocols (the Pre-action PD) contained within the Civil Procedure Rules (CPR). In particular, we refer you to paragraphs 13 to 16 of the Pre-action PD concerning the court’s powers to impose sanctions for failing to comply with its provisions. ignoring this letter may lead to our client commencing proceedings against you and may increase your liability for costs.

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9
Q

headings for letter before claim

(try to expand on each part THEN LOOK AT ‘LETTER BEFORE CLAIM’ on OneNote)

A

Dear

Cl’s name: Claim for ___

The facts

Legal basis of claim

Liability/responsibility

Damages/Compensation

Documents enclosed

Your documents

Alternative Dispute Resolution

Instructing an Expert

Practice Direction: Pre-action Conduct

Acknowledgement and response deadline

Court proceedings

Copy of this letter

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10
Q

What should u do about documents in letter before claim?

A

enclose copies of those relevant and list them

request any which believe in control (and list)

confirm that will take proper and appropriate steps to ensure no relevant documents, inc electronic, that are in control, are lost, destroyed or diposed of

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11
Q

What should u say about instructing an expert in letter before claim

A

“we propose that one of the following experts be jointly instructed as [a single joint expert OR an agreed expert] in field of [], on the issue of []:

[list]

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12
Q

Action required section of letter before claim - what should it say

A

Payment of the full amount due should be remitted to the following account within [] days of this letter.

[account details]
(could say available on request?)

If you do not consider the amount set out in this letter to be due to our client, an acknowledgement of this letter should be provided within [14] days of receipt, namely by []. Your full response to this letter should be provided no later than [21 days] after date of this letter, namely by [].

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13
Q

What to say if cl instructs to commence proceedings if no reply to letter before claim

A

In the absence of a full response by []. we are instructed to issue and serve proceedings without further notice.

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14
Q

what to inc at end of letter before claim

A

(fyi this bit not inc in Ulaw version)
Our client reserves all its rights, including the right to commence proceedings against you (without further reference to you should that prove necessary) and to seek an order for (damages or total amount due) plus interest and costs.

Please acknowledge safe receipt of this letter and provide response no later than [SPECIFIC day - usually 14 days unless complex].

Ignoring this letter may lead to our client commencing proceedings against you and may increase your liability for INTEREST AND COSTS.

A copy of this letter is enclosed and we suggest that you forward it to your insurers/solicitors immediately.

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15
Q

How to summarise part 36 to lay client

A

(set out aim of it - enc resolve disputes)

Basically, if a party fails to accept a realistic offer made by the other side, in certain circumstances it is at risk of being penalised in cost and interest at the end of the case.

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16
Q

Can claimant withdraw or vary part 36 offer?

explain position during and after relevant period

A

During
- yes, serve notice of withdrawal
- but can still accept
- Cl can apply court within 7 days of Ds acceptance
- court wil grant permission for permission to withdraw/amend if IoJ and satisfied change of circumstances since made offer

After:
- withdraw or vary to make less adv at any time without permission

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17
Q

what to SAY to o/s in letter before claim re docs for them to provide

clue: what steps should o/s take re looking for docs

A

list any relevant docs and explain why relevant:
(eg receipts in respect of damages claimed)

Please provide us within X days copies of following docs, which we believe are relevant to this matter and likely in control:

This is not purported to be an exhaustive list of docs relevant to this matter. Please confirm that you will take PROPER and APPROPRIATE steps to ensure no relevant documents in your control, including electronic documents, are altered, lost, damaged, destroyed or disposed of.

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18
Q

Letter before claim absolutely MUST contain what?

(assuming Practice Direction applies - cos no other pre-action protocol)

A
  • basis of claim
  • summary of facts
  • what want from D
  • if money, how calculated
  • key relevant docs
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19
Q

what to say in letter before claim re docs enclosed

A

The following documents are relied on by our client in support of the claim and copies are enclosed:

(list and state which issue each supports)

  • receipts in respect of damages claimed
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20
Q

what to say about ADR on letter before claim

A
  • any proposal client wishes to make
  • inc method
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21
Q

what to say about PDPAC in letter berfore claim

A

(say at end)

This letter is being sent to you in accordance with PDPAC contained in the CPR. In particular, we refer you to paras 13 to 16 of PDPAC concerning the court’s power to impose sanctions for failing to comply with its provisions.

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22
Q

what to include at end of reply to defence

A

Except where the Defendant has made admissions and except as appears in this statement of truth, the Claimants join issue with the Defendant upon his Defence.

‘joins issue’ means to disagree or to contest.

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23
Q

If counterclaim would just be repeat of defence, what could you say.

A

(continue numbering from defence)

  1. The Defendant repeats paragraphs 1 to 5 of the Defence.
  2. Owing to the above matters, the Defendant has suffered loss and damage.

PARTICULARS OF LOSS AND DAMAGE

__
___

  1. The Defendant therefore counterclaims from the Claimants damages in respect of the above
  2. The Defendant claims interest under section 35A of the Senior Courts Act on damages awarded at such a rate and for such a period as the court thinks fit.

AND THE DEFENDANT COUNTERCLAIMS:
(1) Damages as stated in paragraph 9 above;
(2) Interest as stated in paragraph 10 above.

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24
Q

if claiming interest on damages for court to determine what should u say in particulars / what act?

A

(I think)

The Defendant claims interest under section 35A of the Senior Courts Act on damages awarded at such a rate and for such a period as the court thinks fit.

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25
Q

how to set out part 18 request for further info

A
  1. In relation to paragraph () of the particulars of claim, please state:
    (a)
    (b)
    (c)
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26
Q

can particulars of claim be sent later than claim form?

A

If practicable, the particulars of claim should be set out in the claim form. If not, they may be served with the claim form or later.

CPR PD 16 para 3.1.

check that when got more time

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27
Q

should mitigation of loss be used as a defence?

A

yes it is a possible defence

(if could have avoided by taking reasonable steps)

28
Q

ULaw LLP acts for a woman who entered into a written contract with her electrician on 1 March [last year]. The contract required the electrician to rewire the woman’s house for an agreed sum of £6,000. The electrician failed to carry out the rewiring properly causing the woman’s house to catch fire on 31 July [last year]. The cost of repairing the house is £35,000.

Which one of the following best describes how the brief details of claim should be drafted in the claim form?

A: The claimant’s house was damaged by a fire caused by the defendant’s negligence which will cost £35,000 to repair.

B: In breach of a written contract dated 1 March [last year] the defendant failed to rewire the claimant’s house exercising reasonable care and skill causing the claimant’s house to catch fire on 31 July [last year]. The clamant claims damages of £35,000 being the cost of repair.

C: The claimant’s cause of action is breach of contract. The remedy sought is damages. The measure of damages is the cost of cure.

D: The claimant’s house was damaged by a fire caused by the defendant’s breach of contract which will cost £35,000 to repair.

A

Option B best describes how the brief details of claim should be drafted in the claim form. The brief details must be a concise statement of the nature of the claim and specify the remedy which the claimant seeks.

Options A and D not best answer as should give brief details of nature of claim and remedy seeking.

(unit 3 prep DR test knowledge)

29
Q

Tomlin order - confidential things in schedule or separate doc?

A

BOTH ! trick Q !

got the option - can either put in a schedule or a separate doc

(separate doc better practice)

30
Q

Key directions might encounter in fast track

A

(think this is things should include in draft directions order)

31
Q

Key directions might encounter in intermediate track

A

(think this is things should include in draft directions order)

32
Q

Key directions might encounter in multi-track

A

(think this is things should include in draft directions order)

33
Q

could experts opinion be admissible hearsay if repeated in witness statement,

e.g. The client had the car examined by an expert mechanic who informed the client that the car ‘had been completely rebuilt after a collision 2 years previously’ (Statement 2).

A

(I think no)

A factual witness statement must not be used to adduce expert evidence by referring to an expert’s opinion. Expert evidence is only admissible with the permission of the court and must be in the form of a written report as prescribed by the CPR.

34
Q

What to include in Part 36 letter to CLIENT?

A
  • enclose copy of letter

The offer
- figure plus legal costs
- includes interest
- aim of Part 36 and what it does, mention CPR
- specify 21 days “Relevant Period” - accept on ___ date
- if offer remains open, u can accept anytime before trial. after trial commenced, need court.

Effect of acceptance of the offer
- if within relevant period, stayed (suspended)
- pay within 14 days (X day)
- IN ADDITION legal costs until acceptance - usually ‘standard’, meaning…)
- accept after, likely pay more costs (cos for longer period) and risk withdraw

Effect of not accepting
- three possible outcomes (equal/more, less adv, they lose)
^ explain each (equal/more the most)
- if she lost, usually pay VSL standard

35
Q

how to start letter before claim

(before facts / intro)

A

We are instructed by [] of [address]. This is a Letter before Claim in accordance with the Practice Direction – Pre-Action Conduct and Protocols in the Civil Procedure Rules (“the Practice Direction”). We are instructed to [recover damages for breach of the above contract.]

(Give contract in the heading)

36
Q

what is usually used in multi-track for disclosure

A

PI multi-track normally standard

non-PI choose from menu

37
Q

what is train of enquiry order

A

part of menu of options court could order in multi-track cases

each party must disclose any docs which is reas to suppose may contain info which enables that party to advance its own case or damage that of any other party or leads to an enquiry which has those consequences
^ wide scope, limited to exceptional cases where can justify the expense (eg fraud)

38
Q

Tomlin order - is it used for ADR?

A

no - proceedings must have been issued

39
Q

How to explain docs in part 1 of disclosure list?

A

(see legal drafting, disclosure list)

Brief description, including date, and say where they are kept (only if not in your control) and who by (if relevant)

Don’t say what the docs contain

e.g.
- Claimant’s driving licence [dated]
- Medical report of Ms __ ___ dated 1 July 2021 attached to Particulars of Claim dated ___ ]
- Claimant’s medical records [dated] kept at the claimant’s doctors surgery and St Mark’s hospital

40
Q

How to describe docs in list 2

A

Brief, don’t name.

e.g.
1. An expert’s report
2. A witness statement

Explain why object (imp):
- would need to mention POINT report obtained
(e.g. after proceedings issued/litigation contemplated)
- need PURPOSE why obtained
(e.g. sole or dominant purpose contemplated litigation/giving legal advice for this liti)
fyi if unsure whether sole or dominant, just say dominant
fyi fyi advice privilege can apply whether or not liti ongoing or contemplated

examples:
1. The expert’s report was obtained by the claimant’s solicitors when this litigation was reasonably contemplated for the dominant purpose as having evidence for this litigation and so it is protected by legal professional, litigation privilege.

  1. The witness statement was obtained by the claimant’s solicitors when this liti had commenced for the sole purpose of providing legal advice and so it is protected by legal professional, litigation privilege.
41
Q

when would u put expert statement etc in list 1 even tho would be covered by LPP

A

waived by sending it to other side or filing at court

42
Q

what’s the phrase where using a back up option if find against u in DR

(would use in defence etc)

A

“In the alternative, if, which is not admitted, [has suffered such loss damage, it is denied that this was due to D’s actions]”

“If, which is not admitted, [that loss was sustained, then it is D’s case that such loss too remote]”

43
Q

What to include after statement of truth?

A

The [Defendant’s] solicitors are [address (telephone: ; Reference: )] .

(think sometimes may also say are ___ LLP, whose address for service is ___ “

To: The [Claimant] and the Court Manager

44
Q

section 35A vs section 69 of __ Act ?

A

where court discretion to a ward interest 😮‍💨

Section 35A SENIOR Courts Act 1981
= interest on High Court cases

Section 69 County Courts Act 1984
= interest for County Court cases

(I guess c c 69 more COMMON)

45
Q

What should you include on “what order are you asking the court to make and why” on N244 form (ie interim application form)?

A

read the eg’s they are helpful

  • Appropriate order for costs
    (e.g. order that C pays D’s costs for application)
  • What is needed?
    (e.g. longer to file defence - state last day it was due, how much longer require and proposed new deadline date)
  • Ideally CPR provision
    (e.g. Rule 3.1(2)(a) permits court to XYZ)
  • Why is it needed?
    (e.g. D is not yet in a position to finalise, file and serve its defence)
46
Q

“How do you want to have this application dealt with?”

How should u answer this?

(N244 interim application)

A

Less than 1 hour - over phone should be fine if at least one party legally represented (so tick ‘remote hearing’)

If both parties agree, court will deal with on written evidence submitted instead o a hearing (so tick ‘without a hearing’)

47
Q

“What level of Judge does your hearing need?”

How to answer on N244 form?

A
  • Masters and District Judges have jurisdiction to deal with virtually all
  • But certain matters - mainly FREEZING injunctions and SEARCH orders reserved for Circuit Judge in County Court or High Court judge
48
Q

“9a. Please give the service address, (other than details of the claimant or defendant) of any party named in question 9.”

When do you include that

A

Question 9 asks who is to be served

So you include address for service at 9b if is a party who is not Cl or D (ie a TP) named at Qa

49
Q

What should first paragraph on defence be?

A
  1. The paragraph numbers referred to in this document are the paragraphs in the Particulars of Claim. The definitions used in the Particulars of Claim are adopted for the purposes of this document.
50
Q

Phrase to put at end of defence where don’t think claimant entitled to anything

A

“The Defendant denies that the Claimant is entitled to the relief claimed or to any relief”

(nb is third person even if signed by defendant themselves, not legal rep)

51
Q

What forms of dispute resolution can you get public apology in

A

Not litigation or arbitration

Yes negotiation mediation if confidentiality waived on that point

But ultimately if looking to protect reputation may need to take litigation proceedings since open to public reporting

52
Q

imp things to consider breach of contract

A
  1. Contract existed
    (agreement, consideration, intention - presumed business)
  2. Causation
    (as a result of breach, eg discoloured)
  3. Loss and damage
    (eg cost of repair)

4, Remoteness
(natural consequence/flows and reasonable contemplation)

  1. Mitigation
    (reasonable costs incurred/steps taken eg 2 quotations)
53
Q

Witness statement what should u say at start

A

I, [___, of [address]] or [name, Managing Director of ___, whose registered office is at __, say as follows:-]
(not will say - just say as follows)

  1. The statements of fact in this witness statement are made from [my own knowledge]. This statement has been prepared following discussions with my solicitor via telephone].”

or if a business is the Cl/D

  1. I am an employee and director of the defendant in this case and I am authorised by the defendant to make this witness statement on its behalf. The statements of fact in this statement are made from my own knowledge. This statement has been prepared following discussions with my solicitor by telephone.
54
Q

u can pretty much always replace via with what

A

by

lol

55
Q

what to be aware of with VAT in costs?

A

If your client is VAT registered, you cannot claim VAT
If both limited companies, do not ask - more than likely both pay VAT

56
Q

What are the statutory provisions for security for costs order?

A

CPR 25.13

(2)
(a) outside jurisdiction but not Hague Convention MS
(c) company and reason to believe unable to pay D’s costs
(g) taken steps assets enforcement difficult

57
Q

What are Hague Convention states?

A

EU
Singapore
Mexico
Montenegro
Denmark

58
Q

What evidence may be used to support 25.13(2)(g)? (company reason believe unable costs)

A

NB must be a company

  • company accounts (nosy)
  • credit ratings (rate nosying a 10)
  • outstanding insolvency petitions
  • evi past failure to pay cost orders

may also infer by:
- media evi (stack)
- evidence from creditors who are owed money by D (Davidsons)
- unusually large dividends before proceedings

59
Q

25.13 (2) (g) - C steps make enforcement difficult - what must you show and what don’t you need to show?

A

That steps have actually been taken in relation to ASSETS

Those steps WOULD, not might, make enforcement difficult

No requirement that motive was to make enforcement difficult

Misconduct irrelevant

But if evidence that steps taken for purpose enforcement difficult, state in evi supporting application

(e.g. case law - security ordered because sale of home in Aus made more difficult to enforce order)

e.g. that dissipated / transferred overseas / places unknown to D

60
Q

What should witness statement supporting application for security for costs order include?

A

Evidence supporting application
- e.g. if arguing would be unable to pay costs, company accounts

Location of assets and practical difficulties of enforcement

Amount security sought, details costs already incurred and estimate future costs
- could exhibit/refer to last costs budget

Compare company’s assets and likely total costs of liti
(since if less assets than costs, unlikely able pay)

Parties correspondence if voluntary payment request was refused

61
Q

Risks of bringing interim application

A

Court may order pay own and other sides costs if unsuccessful

e.g. strike out application

62
Q

Strike out grounds

what must respondent show

A

RAF
- no reasonable grounds bringing/defend
- abuse process or likely obstruct proceedings
- failure comply rule, practice direction order

IUD
- inappropriate
- unjust
- draconian

63
Q

Opponent - argue alternatives to strike out. What alternatives?

A
  • unless order
    (UNLESS [file X] within [X days], strike out]
  • indemnity costs
  • lose or pay interest on damages
  • make directions for further info / amendment
64
Q

potential ‘no reasonable grounds claim/defence’ for strike out?

A
  • not legally recognisable
  • too short
  • incoherent
65
Q

potential ‘failure comply court order, practice direction or rule’

A

(strike out)

failed to:
- comply directions issued by court
- refusal comply further info request
- non-payment of fees

generally persistent failures which prejudice other party all the PPPPPPPPs

(must be serious)

Dispute Resolution (3 decks)

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