Tort and Disputes Flashcards
What is the limitation period for the tort of negligence? What is the exception?
In negligence, six years after loss is sustained or three years after date of knowledge of loss, whichever is later.
Three years for personal injury.
In breach of contract, six years after breach.
15 year limit for negligence.
When does the limitation period start for minors?
Upon turning 18.
What are the advantages of mediation?
Cheaper and private and a commercial solution can be proposed.
What are the disadvantages of mediation?
Parties can withdraw at any time and disclosure to the mediator is not required.
What are the advantages of arbitration?
Quicker than courts and private and the arbitrator’s decision is binding.
What are the objectives of pre-action protocol? Name at least three.
Litigation last resort.
Parties should exchange sufficient information about claim.
Reasonable and proportionate steps should be taken.
What can the court do if a party failed to consider ADR?
Order a costs order on indemnity basis instead of standard.
When does the duty to take positive action to prevent harm to third parties arise?
When there is a relationship of control like parent-child.
When does the duty to take positive action to prevent harm to the other party arise?
When there is a special relationship like parent-child or the party has created a dangerous situation.
Does all foreseeable risk need to be acted upon with precaution to protect oneself from tort?
No. The court will always balance the foreseeability of risk with the cost of taking precaution and public benefit.
What are the three limbs of the Caparo test used to determine the existence of a novel duty of care?
- Foreseeability of damage.
- Proximity between parties.
- Whether it is fair and reasonable to impose a duty of care. Policy issues can be considered.
Does the duty of care between road users and pedestrians apply to the police?
Yes.
Does the police own the public a duty of care in the investigation of crime?
No. No duty of care is owed in investigative actions.
When does the police own the public a duty of care?
During their operational activities, not investigational.
Is foreseeability objective or subjective in tort?
Objective. You are always measured against the average reasonable person.
When is a doctor NOT breaching his duty of care by using an experimental drug?
When they can find that their practice would be supported by a reasonable body of doctors.
What is the maxim of res ipsa loquitur?
‘The thing speaks for itself’. Such accidents do not often occur without negligence. There must be no evidence of the claim.
What is a Tomlin order?
An order from the court that proceedings are stopped (stayed) on terms that have been agreed in advance during mediation.
Which country has jurisdiction in a sales of goods contract?
The country where the goods were delivered.
What is pure economic loss?
Economic loss which is not a result of a personal injury or property damage.
What defines a primary victim for the purposes of pure psychiatric harm?
Someone directly involved in the incident who were foreseeably under risk of physical injury.
What is the threshold for having the option to make a claim in the High Court?
100k for all claims except personal injury which is 50k.
Anything less needs to be with County Court.
What needs to be included in a statement of value?
Confirmation that the claim exceeds the threshold for that court.
Who can sign a statement of truth?
Anyone controlling or managing the business.
The legal representative.
When is a claim form deemed to be served?
The second BUSINESS day after it is sent (so not tomorrow, the day after). 48 hours after posting basically.
Is filing a defence an acceptance of a court’s jurisdiction?
Yes.
What is the thin skull rule?
You take your victim as you find them.
Do local contractors owe a duty of care to local businesses affected by their actions?
Yes.
When can someone apply for a default judgement to be set aside?
When they have a real prospect of defending the claim.
Do you need permission to apply for a defendant to be added to a claim?
Yes.
When is someone liable for pure economic loss?
When they assumed responsibility, gave someone advice and the person reasonably relied on that advice.
How many days does someone have to file an acknowledgement of service?
14.
How many days does someone have to file a defence?
28.
Is it mandatory for a court to set aside a default judgement that was entered too early (before defence was filed)?
Yes.
What is the cut-off time for delivering something on a business day for the purposes of service?
4.30 pm.
Can you recover the cost of a defective item in a claim for negligence?
No because it would be considered pure economic loss.
What defines a secondary victim in terms of pure psychiatric harm?
- Witnessed horrific event with senses.
- Suffered a recognised mental condition.
- Relationship of proximity with an actual victim.
What amendments to a statement of case can a court allow after expiry of the limitation period?
- Add new claim on the same facts.
- Change name.
- Alter capacity as claimant based on same facts.
After receiving a Part 18 request for further information, can you add new stuff to your defence?
No. You can only give more detail to what you’ve already said.
What is the process of amending a defence?
- Ask for claimant’s consent.
- If refused, apply to court.
When can a court give summary judgement?
When it considers that a defendant has no real prospect of defending the claim and there is no other compelling reason to dispose of the issue at trial.
When should you apply without notice to the other party for an injunction that affects them.
You should NOT give notice if there is urgency.
What is a freezing injunction?
An injunction which prevents a party from being able to dissipating or disposing of assets.
What is needed for an amendment of particulars of claim after it is filed and served?
The written consent of the other party or the permission of court.
When must defences to counterclaims be filed?
Within 14 days.
Unlike normal defences, where it is 28 days.
What duty do employers owe employees in tort?
Safe place and system of work.
Competent staff.
Adequate equipment.
How long before a hearing should an application to amend defence or particulars NOTICE be served?
There must be three clear business days between service of the notice and the hearing.
When must a claimant precisely calculate interest and daily rate of interest that will continue to accrue?
When it is a specific claim for money owed.
If it for damages, they only need to set out the statutory basis of entitlement to interest.
Can a defence and counterclaim be included in the same document?
Yes.
Can a witness statement be argumentative?
No. It has to be objective and about facts.
What is the document called that responds to a counterclaim?
‘A reply and defence to counterclaim.’
What must the court be satisfied of in order to grant interim payment?
The court must be satisfied that the claimant would obtain judgment if the case went to trial.
Can a court grant an interim payment because of someone’s financial hardship?
No.
Does two hours classify as immediate aftermath for the purposes of pure psychiatric harm?
Yes.
Are professional rescuers treated differently for the purposes of pure psychiatric harm?
No. They are treated like an average civilian.
What is pure psychiatric harm?
Psychiatric harm that is not accompanied by physical injury.
Can employees sue employers for breach of statutory health and safety regulations?
No. But the regulations will be relevent in assessing negligence.
What do you need to prove in order to sue your employer for unsafe equipment at work?
That the manufacturer of the equipment (not the employer) was at fault and caused the injury. If the manufacturer was at fault, the employer is also automatically liable.
What are the different bands for small claims, fast and multi track?
Small claims: less than 10k unless complex.
Fast track: 10 to 25k.
Mutli-track: Over 25k.
Does a directions questionnaire need to be filled?
Yes.
How long before hearing must all documents be disclosed?
14 days.
Do you need to disclose documents that negatively affect your case or positively affect the other’s case?
Yes.
When is a document protected by litigation privilege?
When it is a document that came into existence when litigation was contemplated or ongoing and was produced for the purpose of litigation.
Can a party require a non-party to disclose documents?
They can apply to court for such a disclosure.
Is legal advice privileged?
Yes. It does not need to be disclosed.