Unit 1 Overview & 2 Limitation Flashcards
What is the overriding objective?
- These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
- Dealing with a case justly and at proportionate cost includes, so far as is practicable –
a. ensuring that the parties are on an equal footing;
b. saving expense;
c. dealing with the case in ways which are proportionate –
i. to the amount of money involved;
ii. to the importance of the case;
iii. to the complexity of the issues; and
iv. to the financial position of each party;
d. ensuring that it is dealt with expeditiously and fairly;
e. allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
f. enforcing compliance with rules, practice directions and orders.
What does active case management include? (12)
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
a. encouraging the parties to co-operate with each other in the conduct of the proceedings;
b. identifying the issues at an early stage;
c. deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
d. deciding the order in which issues are to be resolved;
e. encouraging the parties to use an alternative dispute resolution(GL)procedure if the court considers that appropriate and facilitating the use of such procedure;
f. helping the parties to settle the whole or part of the case;
g. fixing timetables or otherwise controlling the progress of the case;
h. considering whether the likely benefits of taking a particular step justify the cost of taking it;
i. dealing with as many aspects of the case as it can on the same occasion;
j. dealing with the case without the parties needing to attend at court;
k. making use of technology; and
l. giving directions to ensure that the trial of a case proceeds quickly and efficiently.
What is the order of Civil Procedure? (12)
- Pre-Action Protocols
- Claim Issued
- Claim Served
- Defence Filed and Served
- Track Allocation
- Disclosure of Documents
- Exchange of Witness Statements
- Exchange of Expert Reports
- Pre-trial Review
- Trial
- Judgement
- Enforcement
Does the seriousness of the allegation impact the burden of proof?
Burden of proof is on the balance of probabilities. But the gravity of an allegation (such as civil fraud) is taken in account when deciding whether the burden has been discharged.
When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.
If receiving negligent advice both inside and outside the relevant limitation period, do you have a claim?
No if arising from the same cause of action. In Sciortino v Beaumont [2020] a claim for professional negligence against a barrister for advice on appealing against a possession order in bankruptcy proceedings, which had been given both inside and outside the limitation period, was statute-barred as the advice was continuous and flowed from the same cause of action.
Do the words “shall not be brought” mean the claimant cannot bring the claim?
The expiry of the limitation period bars the remedy by action and does not extinguish the right. Despite the language used, this has not been taken to mean that the bringing of an action after that time is prohibited but that the defendant has a statutory defence of time-bar in such a case.
What is the definition of “date of knowledge” for death and PI (s11 and 12)
(1)Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—
a. that the injury in question was significant; and
b. that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
c. the identity of the defendant, and
d. if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
What is the definition of “date of knowledge” for death caused by defective product?
(1A)References to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—
a. such facts about the damage caused by the defect as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment; and
b. that the damage was wholly or partly attributable to the facts and circumstances alleged to constitute the defect; and
c. the identity of the defendant;
But, in determining the date on which a person first had such knowledge there shall be disregarded both the extent (if any) of that person’s knowledge on any date of whether particular facts or circumstances would or would not, as a matter of law, constitute a defect and, in a case relating to loss of or damage to property, any knowledge which that person had on a date on which he had no right of action by virtue of Part I of that Act in respect of the loss or damage.
What is the statute description of “significant injury”?
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
What does a person’s knowledge include when considering the relevant date?
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—
a. from facts observable or ascertainable by him, or
b. from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.
Does the claimant need to have knowledge of all 4 elements that make up the “date of knowledge”
Yes. The claimant must have knowledge of them all but they are not exhaustive.
a. that the injury in question was significant; and
b. that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
c. the identity of the defendant, and
d. if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
How high is the burden of proof in showing that the injury was “attributable”?
Attributable – s14(1)(b) ‘attributable’ means ‘capable of being attributable to’ not as high burden of proof as causation.
