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Civil Dispute Resolution > Week 1- Commencing Proceedings > Flashcards

Week 1- Commencing Proceedings Flashcards

1
Q

What is the limitation period for contractual claims?

A

6 years from the date of breach

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2
Q

What is the relevant limitation period for (non-PI) tort claims?

A

6 years from the date when the damage/loss occurs.

So the end date will often be later than for contractual claims.

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3
Q

What is the courts’ overriding objective

A

To deal with cases justly and at proportionate cost.

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4
Q

What is the main aim of the pre-action protocols?

A

To get the parties to settle early, without involving the courts.

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5
Q

When should the parties start thinking about admitting liability and forms of ADR?

A

Pre-commencent of proceedings (PD 8 in respect of ADR). Silence in response to an opponent’s suggestion of ADR can itself be deemed unreasonable conduct.

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6
Q

What are the main consequences for non-compliance with the pre-action protocols?

A

**Court may penalise non-complying party when it comes to awarding **costs and interest. **

Eg: If a party has behaved particularly unreasonably and is the losing party, the court may award the successful party costs on an indemnity basis.

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7
Q

What should C generally do before commencing proceedings? When is non-compliance with pre-action protocols exceptionally excused here?

A

Write to D, setting out its gripe, and requesting settlement, ADR, etc.

2 main exceptions to compliance w/pre-action protocols:
1) Limitation period about to expire
2) Need for element of surprise (eg asking for search order, concern notification will lead to destruction of documents)

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8
Q

What is the general pre-action protocol for PI claims?

A
  1. Letter of Notification to D
  2. Parties consider any rehab needs and how to address them
  3. Letter of Claim to D.
  4. D acknowledge LOC within 21 days of receipt
  5. D send full Letter of Response **within 3 months of acknowledgement **
  6. ADR: Key disclosure, negotiations, settlement proposals
  7. Parties jointly select quantum expert (eg medical expert)

check whetehr it’s 21 days of sending or receipt

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8
Q

What is the general pre-action protocol for non-PI claims?

A
  1. LOC to D
  2. D LOR within reasonable period (depending on complexity of claim) either accepting or denying claim (in whole/part) with reasons
  3. ADR: Key disclosure, negotiations, settlement proposals
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9
Q

What types of claim must be issued in County Court?

A
  1. Where statute says so
  2. PI claim worth less than £50k
  3. Non-PI claim worth 100k or less
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10
Q

In cases which can be commenced in either the county or high court, what factors must C consider when deciding which court? (7A PD)

A

a) financial value of the claim: This is **the amount C is claiming ** (disregarding costs, interest, any counterclaims, etc);
b) complexity of facts / legal issues / remedies / procedures; or
c) importance to the public

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10
Q

What are the consequences for commencing in wrong court?

A
  • Court may transfer to correct court (CPR 30)
  • Court can order C to pay costs of transfer
  • If claim wrongly begun in High court and continued in HC, HC may reduce costs awarded by up to 25%.
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11
Q

Why is the date of issue of the claim form so important?

A

It stops time running for limitation purposes and starts the clock for the time by which C must serve claim form.

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12
Q

Which County Court money claims can be issued online?

A

This service can only be used for money claims with a value of up to £100,000 which are against no more than two Ds..

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13
Q

Who will serve th claim form?

A

Either
* Court (normally): Upon doing so, it will send C a notice of issue
* C: Will need to notify the court upon issue that it intends to serve. Must file certificate of service at court within 21 days of service, with details of date and method of service.

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14
Q

By what method will the court serve claim form?

A

1st class post

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15
Q

List the valid methods of service for C

A

o Personally on D
o Leaving the document at a permitted address
o 1st class post
o Document exchange (DX)
o Fax: Only allowed if D/D’s solicitor has indicated it will accept service by fax
o Other electronic method (eg email): Only allowed if D/D’s solicitor has indicated it will accept service by email.
o Any other method authorised by the court

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16
Q

D is an individual. Where must C serve the claim form?

A

Usual or last known residence

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17
Q

When is the deadline for serving the claim form?

A

The ‘relevant step’ to serve the claim form must be completed before 12.00 midnight on the calendar day 4 months after the date of issue of the claim form (CPR 7.5(1)).

Eg: Claim form issued on

18
Q

What is the ‘relevant step’ for 1st class post?

A

Putting the claim form in the post

19
Q

What is the relevant step for DX?

A

Leaving the claim form with the DX service

20
Q

What is the relevant step for service in person?

A

Leaving the claim form at the relevant place i.e. D’s residence

20
Q

What is the relevant step for electronic method i.e. email?

A

Sending the email

21
Q

What are the conditions that must be satisfied for the court to grant an extension of time for service of the claim form under CPR 7.6?

A

1) The application should be made within the 4 month period of validity of the claim form, and C will need to show good reasons for the extension. Waiting for further evidence or for a response from D to pre-action correspondence is unlikely to be a good reason.
2) If the application is made after the deadline for service of the claim form has already passed, then the court will grant an extension only if:
a) it is the court that failed to serve the claim form; or
b) C has taken all reasonable steps to comply; and
c) either way, the application has been made promptly.

22
Q

What is the deadline for serving the particulars of claim if they are not already contained in the claim form?

A

1) Within 14 days of deemed date of service of the claim form; and
2) Within the claim form’s 4 month validity period (CPR 7.4(2)).

23
Q

When is the claim form deemed to have been served?

A

On the second business day after completion of the “relevant step” (CPR 6.14).

‘Business day’ = not Sat, Sun, bank hols, Good Friday or Xmas day.

24
Q

If the POC are served via instantaneous method (eg personally, email, etc) separately to Claim form, what is the deemed date of service of the POC?

A
  • If done before 4.30pm on a business day: deemed served the same day.
  • Otherwise: deemed served the next business day
25
Q

If the POC are served via non-instantaneous method (eg post, DX) separately to Claim form, what is the deemed date of service of the POC?

A
  • Deemed served second day after posting/giving to DX provider, if a business day.
  • Otherwise: deemed served the next business day
26
Q

What must always be given at the end of a statement of case?

A

A statement of truth

27
Q

What is the form and purpose of the claim form?

A

The form is set out in Form N1. The purpose is for C to briefly say what his claim is about (set out the key elements of the claim) and what he wants (viz remedy).

If claiming mony, CF must have statement of amount claimed (CPR 16.3).

28
Q

In a claim for money, what are the 3 ways C can set out the amount he’s claiming?

What must be included specifically for PI claims?

A

1) Specified claim: State amount
2) Unspecified claim: eg “C expects to recover more than £100k”
3) “I cannot say how much I expect to recover”

In a PI claim, C must state whether the amount which the claimant expects to recover for pain, suffering and loss of amenity is or is not more than £1,500.

1 and 2 are the main ways.

29
Q

What is the effect of C’s statement of value (amount he’s claiming) on the court’s remedial discretion?

A

The court’s power is NOT limited by C’s statement of value in the claim form; the court can give judgment for whatever amount (if any) it finds C is entitled to (CPR 16.3(7)).

30
Q

For a non-PI claim to be issued in High Court, what must the claim form include?

CPR 16.3(5)

A
  1. “C expects to recover more than £100k”; and/or
  2. Specify any statute that requires claim to be brought in HC
31
Q

For a PI claim to be issued in High Court, what must the claim form include?

CPR 16.3(5)

A
  1. state that C expects to recover £50k or more; or
  2. state that the claim is to be in one of the specialist High Court lists and state which list.
32
Q

Ordinarily, the particulars of claim will be a separate stand-alone document. When would it be included in the claim form?

A

In a simple debt claim.

33
Q

What must C set out in the particulars?

A
  1. The material facts and allegations which, if proved by evidence, would entitle C to the remedy it seeks as a matter of law i.e. duty, breach, causation, loss.
  2. Interest:A statement that C is claiming interest on the amount claimed and details of how much interest.
34
Q

What must the particulars contain in a PI claim?

A
  • Details of injuries
  • Schedule of past and future loss of expenses
  • Medical report (if relied upon)
35
Q

What are the 2 legal bases of C claiming interest?

A
  1. set out in a contract between the parties or, failing that
  2. there is a **statutory right to interest **(under s.35A SCA 1981 in the High Court and s.69 County Courts Act 1984 in the County Court).
36
Q

When would C claim an exact amount of interest?

A

In a specified claim

37
Q

Where C is making a specified claim, how will he claim interest?

A

C will plead interest generally

38
Q

Describe the principles that apply where C relies on his statutory right to claim interest

A

***** Generally, the court has a discretion as to whether to award interest, and how much, from the date the cause of action accrued until judgment (or until payment, if before judgment).
o Different provisions cover interest after judgment (if the judgment sum is not paid), and these are outside the scope of this element.
* In personal injury claims where damages over £200 are awarded, some interest MUST be awarded unless there are special reasons for not doing so, but the amount is still in the court’s discretion.
* In debt claims, if D pays the whole debt during the proceedings, some interest MUST be awarded, but the amount is still in the court’s discretion.

39
Q

What is the limitation period for PI claims (s.11 LA 1980)?

A

C must bring claim within 3 years of the latest of:
(a) the date when the cause of action accrued (i.e. when damage occurs); or
(b) the date of knowledge of the person injured

Date of knowledge (s.14) = C knew:
* injury was significant,
* attributable to alleged wrongdoing
* the identity of D
* the identity of the alleged wrongdoer (if alleged it wasn’t D)

40
Q

If POC are not served in CF, when is deadline for service of POC?

A

The PoC must be served:

  • Within 14 days after the service of the claim form, and
  • Within 4 months of the date the claim form was issued
41
Q

What is the max time D can have to file a defence without court approval?

A

56 DAYS

(28 days AOS + 28 days party ag)

42
Q

How long can court grant extension of time for service of defence?

A

No specified max in CPRs

Civil Dispute Resolution (7 decks)

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