TB - Resolving a dispute through a civil claim

Question 1

Once the limitation period for a claim has expired, there’s nothing a party can do to enable the court to hear the claim.

True or False?

Answer 1

False - in v limited & exceptional circumstances, the court does have discretion to extend the limitation period, but only following an application by the prospective claimant

Question 2

how should a defendant respond if a claimant has issues proceedings against them outside the limitation period?

Answer 2

if the claimant issues proceedings outside the relevant limitation period, the defendant has an absolute defence to an action against them

Question 3

under what circumstances can a claimant with a contractual dispute with a company based in the EU issue proceedings in a court of england and wales?

Answer 3

provided the contract was due to be carried out in england and wales. if the work in connection with the contract was due to be carried out in the EU, then the claimant must issue proceedings in the defendants home court

Question 4

the practice direction on pre-action conduct and protocols is advisory and can therefore be ignored without penalty.

true or false?

Answer 4

false - the PDPACP is guidance only but the court will impose sanctions on parties who fail to follow its substance

Question 5

what can the court do to punish a party who fails to comply with a pre-action protocol?

Answer 5

if a party fails to follow a relevant pre-action protocol, the court is able to punish them by imposing sanctions or penalties

Question 6

are parties encouraged by the court to make attempts to settle their dispute prior to the court being involved?

Answer 6

yes - to assist with this the CPR 1998 have a series of pre-action protocols and a practice direction on pre-action conduct and protocols embedded within them

between them they provide a checklist/framework of things that should be done by the parties before commencing court proceedings

Question 7

SQE NOTE

Answer 7

you must know and understand the preliminary considerations that a solicitor must make their client aware of before issuing proceedings, as well as the purpose and broad principles of the pre-action protocols and practice direction on pre-action conduct and protocols

Question 8

what is pre-action protocol?

Answer 8

pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims

Question 9

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

Answer 9

A Safety net provision - for any matter type that doesn’t have an associated pre-action protocol, parties are expected to follow the guidance in this practice direction instead

Question 10

When a client first instructs a solicitor in connection with a dispute, aside from emphasising the benefits of ADR - what must the solicitor explore and give consideration to before advising the client to issue proceedings?

Answer 10

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

Question 11

As a solicitor you must ensure that the dispute is governed by the law of which area?

Answer 11

England and Wales - must also be sure that you can commence proceedings in a court of england and wales

Question 12

preliminary consideration will be given to which language in the proceedings?

Answer 12

to the use of the welsh language

Question 13

if there’s an express declaration in a contract that the law of england and wales applies to its terms - which law will apply?

Answer 13

england and wales

Question 14

if an express declaration in a contract of which law will apply to its terms - which law will apply?

Answer 14

parties must follow specific rules to determine the jurisdiction - diff rules exist for whether the dispute is inside or outside the EU and whether it’s a contractual or tortious dispute

Question 15

How do you determine the jurisdiction for contract disputes in EU?

Answer 15

• country where the seller/supplier has their habitual residence
• for property disputes, where the property in dispute is located

Question 16

How do you determine the jurisdiction for tort disputes in EU?

Answer 16

country in which the damage has occurred/is likely to occur

Question 17

How do you determine the jurisdiction for disputes outside the EU?

Answer 17

there are no specific ‘default rules’ to cover a situation where there is no express declaration of governing law

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

Question 18

where can proceedings be commenced where the defendant is located in the EU, and theres a specific clause in the contract that specifies the location of the court?

Answer 18

if theres a specific clause in the contract that specifies the location of the court, then proceedings will be commenced there

Question 19

where can proceedings be commenced where there is no express declaration as to the location of the court?

Answer 19

the basic rule is that the proceedings will be issued in the local court to where the defendant is domiciled - if individual

if company - then where the registered office is located

note - the claimant can elect that the case is heard in the state that in which the contract was due to be performed or the damages resulting from the tort were incurred, if they wish

Question 20

Where D is habitually resident outside the EU but spends time in england and wales for whatever reason, provided the claim form can be served on D while they’re present in england and wales - can the claim be heard here?

Answer 20

yes - the courts view is that by allowing proceedings to be served here, the defendant accepts the courts jurisdictions over them

Question 21

PRACTICE EXAMPLE

Pierre, a french resident, negligently crashes into Martha while driving in england, causing Martha injury. She wishes to know what the governing law is and whether she needs to issue proceedings against Pierre in england and wales or in france.

Advise martha

Answer 21

Governing law = england and wales

this is where the damage flowing for, the negligent act took place

martha would have the option of issuign proceedings in france (as D is habitually resident there) or in england and wales (as damages resulting from negligent act were incurred here)

Question 22

What is the limitation date?

Answer 22

the last date on which a claimant can issue proceedings against D

Question 23

Why is it crucial to get the limitation date right - what will happen if you issue a claim outside the limitation period?

Answer 23

it will give D an absolute defence to that action

Question 24

example of limitation period

Answer 24

if the limitation date of a contractual dispute was on 17 March, issuing proceedings on 20 March would mean that the D wouldn’t need to defend the claim on the facts

they would simply need to state that the claim has been brought out of time and is therefore statute barred

Question 25

What is meant by statute barred?

Answer 25

Where a claim is no longer legally enforceable as it hasn’t been issued in the prescribed limitation period

Question 26

What is the formula for calculating the correct limitation date?

Answer 26

1) work out the type of matter being dealt with

2) establish when the limitation period began

3) apply the relevant statutory limitation period

Question 27

note - limitation period

Answer 27

for sqe you are only required to know limitation periods in relation to claims in contract and tort

Question 28

What is the start date of the limitation period and how long is the limitation period for contract claims?

Answer 28

start date of limitation period - date of breach of contract

limitation period - 6 years

Question 29

What is the start date of the limitation period and how long is the limitation period for tort claims (excluding personal injury and latent damage cases)?

Answer 29

start date of limitation period - date the damage occurs

limitation period - 6 years

Question 30

What is the start date of the limitation period and how long is the limitation period for tort personal injury claims?

Answer 30

start date of limitation period - date the cause of action occurs or date of knowledge of the person injured, whichever is later

limitation period - 3 years

Question 31

What is the start date of the limitation period and how long is the limitation period for tort latent damage cases?

Answer 31

start date of limitation period - date when damage occurs or date on which claimant first knew about the cause of action, whichever is later

limitation period - 6 years from the date when the damage occurred
3 years from the date of knowledge
(claim must be brought within 15 years after the negligent act/omission)

Question 32

What is meant by latent damage?

Answer 32

damage that isn’t immediately obvious

eg where a chimney is designed, built and installed by a defendant company which transpires several years after the installation to be defective, causing damage to the rest of the building

Question 33

REVISION TIP

Answer 33

in the tort of negligence - the day the cause of action arose is the date on which damages occurred, not necessarily the date on which the original breach took place

negligence has three composite elements - duty, breach and damage which must all occur before the cause of action arises

Question 34

in the instance where the claim is made outside the relevant limitation period, and the defendant has an absolute defence to this claim, will the claim proceed?

Answer 34

no

Question 35

can the court allow a party to have an extension of the limitation period?

Answer 35

yes in exceptional circumstances

eg where the parties are engaged in ADR that hasn’t concluded by the limitation date, or in limited personal injury cases where the prejudice to the claimant in not being able to bring the claim substantially outweighs the detriment to the defendant

Question 36

what would need to be done by the party that requires the extension?

Answer 36

they would need to apply to court for it, setting out its reasons and any available evidence to support those reasons in the application - court will then make a decision

Question 37

EXAM WARNING

Answer 37

if the scenario of q involves sol being instructed by a client on the dat that limitation is due to expire, where there’s no good reason to apply for an extension of the limitation period - CPR allow a party to ‘issue protectively’

this means a claim would be lodged with the court but not served on Dm up to a max of 4 months after proceedings are issued.

this is to enable sols to protect their clients interests while at the same time conducting prelim investigations and exploring ADR with the D before the formal court process commences

Question 38

PRACTICE EXAMPLE

12 years ago, Great Borders Limited instructed Final Design Limited to design, build and install a fireplace in their great hall.

2 years ago, John, a director of GBL notices crackling around the brickwork surrounding the fireplace, but initially put it down to the age of the building.

the crackling worsened in the last six months, causing GBL to instruct an expert to inspect it

the expert concluded the fireplace was designed and installed defectively, which led to around £600,000 of remedial work to the building structure in the great hall.

Are GBL statute barred frp, issuing proceedings against FDL?

Answer 38

NO

this is a clear example of latent damage claim in tort

start date for GBL limitation period would be 2 years ago, when they first deemed to have knowledge of damage

they are issuing a claim within 15 years of when the negligent act was carried out (work was done 12 years ago), so GBL will be entitled to issue proceedings without running into limitation issues

Question 39

A solicitor will be required to establish, before considering any procedural points, whether there’s a legal cause of action for the client’s claim.

what is a legal cause of action?

Answer 39

the legal basis on which a claimant issues proceedings

Question 40

if no legal cause of action can be brought, can a claim exist?

Answer 40

no

Question 41

qs to ask to identify the claimant and defendant properly & establishing their circumstances

Answer 41

• is the claimant an individual, company or another legal entity?
• is the defendant an individual, company or other legal entity?
• is there more than one defendant?
  eg in instances where a tort has been committed by an employee of a company in the course of their employment, any court action should be against the employee and company as the comp is vicariously liable for the actions of their employee
• does the claimant/defendant lack the requisite mental capacity under Mental Capacity Act 2005 to conduct court proceedings?
  are they a minor?
  if so, they may need a litigation friend to assist them with proceedings
  commonly, an appropriate person would be a parent/guardian, solicitor or close family friend
• if the claim is successful, does d have the assets/finances to be able to pay any judgement or not?
  conducting investigations such as bankruptcy or comp search could reveal that D wouldn’t be able to meet any liabilities arising from court order in any event, making it a v expensive procedure for v little reward

Question 42

what is a litigation friend?

Answer 42

a person who conducts court proceedings on behalf of a child or protected party (eg somebody who by reason of a mental disorder is incapable of conducting proceedings on their own behalf)

Question 43

what are pre action rules

Answer 43

how the CPR expect parties to behave before issuing proceedings

Question 44

what can non-compliance with pre-action rules result in?

Answer 44

a party being penalised by the court at a later stage in the proceedings

pre-action rules are therefore designed to encourage early resolution, thereby ensuring that litigation is only ever a last resort for the parties

Question 45

Where are the objectives of pre-action conduct set out?

Answer 45

in the PDPACP

Question 46

What are the objectives of pre-action conduct?

Answer 46

a) understand each others position
b) make decisions about how to proceed
c) try to settle the issues without proceedings
d) consider a form of ADR to assist with settlement
e) support the efficient management of proceedings
f) reduce the costs of resolving the dispute

Question 47

Which areas of the CPR are the rules relating to pre-action conduct found?

Answer 47

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

Question 48

the pre-action protocols and the PDPACP set out a common series of steps that should be taken prior to proceedings being issued.

what are they?

Answer 48

• claimant should write to defendant with concise details of the claim. the letter should include the basis on which the claim is made, summary of facts, what claimant wants from d, and if money - how the amount is calculated
• D should respond to C letter within a reasonable time (14 days in straightforward case and no more than 3 months in complex one) - reply should include confirmation as to whether the claim is accepted, and if not accepted, reasons why, with an explanation as to which facts and parts of claim are disputed, and whether D is making a counterclaim, as well as details of any counterclaim
• parties should disclose key docs relevant to the issues in dispute

Question 49

what do pre-action protocols include?

Answer 49

they contain specific guidance on the steps that should be taken by parties who have a dispute arising from one of 13 diff legal causes of action

Question 50

what are the 13 diff legal causes of action?

Answer 50

1) personal injury
2) resolution of clinical disputes
3) construction and engineering
4) defamation
5) professional negligence
6) judicial review
7) disease and illness
8) housing disrepair
9) possession claims by social landlords
10) possession claims for mortgage arrears
11) dilapidation of commercial property
12) low value personal injury road traffic accident claims
13) low value personal injury employers liability and public liability claims

Question 51

if a particular pre-action protocol applies, should this be used instead of the PDPACP?

Answer 51

yes - some protocols have template letters of claim annexed to them to ensure that compliance with the protocol can be achieved

Question 52

REVISION TIP

Answer 52

you will not be expected to learn the contents of each pre-action protocol - but will be expected to know which types of claims have pre-action protocols associated with them, and the common series of steps that should be taken by parties prior to issuing proceedings

Question 53

in the event that a dispute doesn’t have a relevant pre-action protocol, which requirements must be followed?

Answer 53

the requirements laid out in the PDPACP

Question 54

is it mandatory for parties to follow the guidance laid out in the PDPACP?

Answer 54

no but the court will consider whether the parties have complied in substance with the PDPACP when deciding whether sanctions are appropriate

Question 55

what are the key requirements of the PDPACP?

Answer 55

• exchange of key information
• consideration of ADR
• instruction of experts (where appropriate)
• proportionality

Question 56

PDPACP requirement - exchange of key information

Answer 56

parties should look to disclose any evidence that allows them to achieve the objective of pre-action conduxt

Question 57

PDPACP requirement - consideration of ADR

Answer 57

parties are expected to explore and provide evidence that consideration has been given to resolving the dispute using a form of ADR

Question 58

PDPACP requirement - instruction of experts

Answer 58

parties should look to instruct a single joint expert instead of an expert for each side to save time and costs

Question 59

PDPACP requirement - proportionality

Answer 59

only reasonable and proportional steps should be taken by the parties to try to resolve the matter, and costs incurred in taking those steps should also be proportionate to the matter in dispute

Question 60

It’s the courts expectation that pre-action conduct will take place in almost every claim but there are certain instances where this will not be appropriate. what are these

Answer 60

• where the application is without notice (made with the intention of giving D no warning, such as freezing order on assets to avoid them being disposed of)
• where the statutory or contractual limitation period is about to expire and compliance with the pre-action conduct requirements would mean that D would have an absolute limitation defence against the action

Question 61

Consequences for failing to follow a pre-action protocol or PDPACP without good reason

what is the consequence for parties who fail to comply with the substance of the relevant protocol or PDPACP without good reason?

Answer 61

they could be liable to penalties or sanctions being imposed on them by the court

Question 62

what are some example of sanctions/penalties being imposed on parties who fail to comply with the substance of the relevant protocol or PDPACP from the court?

Answer 62

• an order that the party at fault pays costs of the proceedings, or part of the costs of the other party/parties
• 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, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded
• if the party at fault is a defendant, and the claimant has been awarded a sum of money, and order awarding interest on that sum for a specified period at a higher rate (not exceeding 10% above base rate) than the rate which would otherwise have been awarded

Question 63

What is meant by indemnity basis?

Answer 63

a term used in the context of costs recovery in civil litigation.

if costs are awarded by the court on the indemnity basis, any dispute between the parties as to the value of those costs will be resolved in favour of the receiving party, and there’s no requirement for the costs sought to be proportionate

this means a party paying their opponents costs on an indemnity basis are much more likely to have a higher costs liability than if they were awarded on the standard basis

Question 64

if theres an express declaration in a contract that the law of england and wales applies to its terms, will this be its position?

Answer 64

yes

Question 65

what is the limitation date?

Answer 65

the last date on which a claimant can issue proceedings on a defendant

Question 66

what do pre action protocols contain?

Answer 66

specific guidance on the steps that should be taken by parties who have a dispute arising from one of 13 different legal causes of action

Question 67

in the event that a dispute doesn’t have a specific relevant pre-action protocol, what must be followed?

Answer 67

the requirements laid out in the practice direction on pre action conduct and protocol (PDPACP)

Question 68

is it true that parties who fail to comply with the substance of the relevant protocol or PDPACP without good reason could be liable to penalties being imposed upon them by the court?

Answer 68

yes

Question 69

from when do breach of contract claims run?

Answer 69

they run from the date on which the cause of action arose (when goods delivered) - relevant limitation period is six years

Question 70

which claims is the 15 year time period relevant to?

Answer 70

latent damage claims in tort

Question 71

is there different rules for goods purchased over the internet?

Answer 71

no

Question 72

true or false

the court will only allow an application to extend limitation in exceptional circumstances?

Answer 72

true

Question 73

note - issuing proceedings immediately is only when limitation date is an issue

Question 74

note for business/company qs

Answer 74

the first place to check is the contract to see if there has been an express agreement made regarding jurisdiction

Question 75

a client has recently been in a car accident. the client was unharmed, but their 8 year old child was seriously injured. the client wishes to make a claim against the driver at fault for the accident. what should they do?

Answer 75

the child is too young to conduct proceedings on their own behalf, so the client would apply to be the childs litigation friend. this means they will be able to conduct proceedings for them