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FLK 1 - Dispute Resolution > 1. Key Pre-action Steps > Flashcards

1. Key Pre-action Steps Flashcards

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1
Q

What is Alternative Dispute Resolution (ADR)?

A

A method of resolving disputes outside of court.

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2
Q

What are the key pre-action steps in ADR?

A

Engaging with ADR and considering alternatives.

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3
Q

What is mediation in ADR?

A

A voluntary and non-binding process where a neutral third party helps parties reach a settlement.

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4
Q

What are the characteristics of mediation?

A

Voluntary, non-binding, confidential, and preserves relationships.

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5
Q

What is arbitration in ADR?

A

A partially voluntary and binding process where a neutral third party makes a decision.

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6
Q

What are the characteristics of arbitration?

A

Partially voluntary, binding, confidential, and easier to enforce.

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7
Q

What is litigation in ADR?

A

A process where disputes are resolved in court.

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8
Q

What are the characteristics of litigation?

A

Not voluntary, cannot withdraw without paying costs, court can impose a solution if no settlement reached, and public.

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9
Q

When should ADR be used?

A

Unless it is inappropriate, the other party won’t cooperate, or the other party won’t comply with the award.

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10
Q

What happens if a party fails to engage in ADR?

A

They may be required to consider settling by ADR and must provide a witness statement giving reasons within 21 days of the ADR proposal.

witness statement must not be shown to trial judge unless questions of costs arises.

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11
Q

What are the court sanctions for refusing to engage in ADR?

A

Sanctions may be imposed on the party, burden is on the other party to show refusal is unreasonable, and there is no presumption in favor of mediation.

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12
Q

What are the solicitor’s duties in relation to ADR?

A

To explain to the client the need to try to settle, the options available, and the possible cost sanction if they refuse to engage.

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13
Q

What is the purpose of an independent third party (ITP) in ADR?

A

To provide neutrality and expertise in understanding the dispute.

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14
Q

What is the effect of an independent third party (ITP) in ADR?

A

Parties are more open and less aggressive, and the prospects of reaching a settlement are higher.

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15
Q

What is the procedure in mediation?

A

The mediator is sent written statements from both parties and discusses the case with them on a ‘without prejudice’ basis.

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16
Q

What are the advantages of mediation?

A

Cost and speed, flexibility, privacy, and preserving relationships.

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17
Q

What is commercial reality?

A

Ability to reach arrangements that litigation and a court would not.

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18
Q

What is the ability to withdraw?

A

The ability to withdraw from a dispute resolution process at any time.

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19
Q

What is limited disclosure?

A

The lack of formal procedures or disclosure, which raises the risk that parties may not know all the facts.

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20
Q

What is the disadvantage of limited disclosure?

A

Parties may not have all the necessary information to make informed decisions.

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21
Q

What is the disadvantage of privacy in dispute resolution?

A

There is no opportunity for public vindication or reparation of reputation.

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22
Q

What is the disadvantage of easiness to withdraw?

A

The ease of withdrawal may eventually lead to litigation.

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23
Q

What is the disadvantage of enforcement in dispute resolution?

A

Enforcement is not automatically binding and non-compliance may amount to a breach of the agreement.

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24
Q

What is arbitration?

A

A dispute resolution process that can be partially voluntary and is governed by the Arbitration Act 1996.

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25
When does arbitration arise?
Arbitration can arise if parties are contractually bound to use arbitration by a dispute clause or if parties agree to arbitration once a dispute has arisen.
26
What is the legal authority for arbitration?
Arbitration is governed by the Arbitration Act 1996, but only if the agreement to arbitrate is in writing.
27
What is the procedure in arbitration?
An independent arbitrator specified or chosen by the parties will adopt the arbitration process and reach a binding decision.
28
How is an arbitration award enforced?
The winning party can apply to the High Court under section 66 of the Arbitration Act 1996 for permission to enforce the arbitration award as if it were a court judgment.
29
What are the advantages of arbitration?
Quicker and cheaper than litigation, less formal, private and confidential, and can provide more practical solutions.
30
What are the disadvantages of arbitration?
Limited disclosure, limited options for remedies (no injunction available), not necessarily a cheap alternative, and very limited right of appeal.
31
What is litigation?
The process of resolving disputes through the court system.
32
What is the disadvantage of no withdrawal in litigation?
Parties cannot withdraw from litigation without paying the opponent's costs.
33
What is the legal authority for civil litigation?
Civil litigation is governed by the Civil Procedure Rules 1998 (CPR).
34
Who are judges?
District judges who deal with work in the County Court and High Court.
35
What do judges deal with?
Majority of interim applications and trials where the amount involved does not exceed 25,000 pounds.
36
Who hears trials of excess amount?
Circuit judges in the County Court and High Court judges in the High Court.
37
Who is the court manager?
Senior civil servant in charge of the court office.
38
What documents are addressed to the court manager?
Formal documents such as claim forms and defences.
39
What is the role of ushers?
To assist in the smooth running of the courts.
40
What do enforcement officers do?
Serve court documents and enforce court orders and judgments.
41
What happens if the claimant misses the time limits imposed by the Limitation Act 1980?
The claim will be 'statute barred' and the matter ends.
42
What happens if the claim is statute barred?
The defendant has a complete technical defence and the claim will most likely fail.
43
Will the court allow actions commenced outside the limitation period to proceed?
No, unless there are exceptional circumstances. ## Footnote textbook gave example, C sued D for sexual assault in 1989 then 2004 D wins lottery, C can pursue D for damages despite claim being outside the limitation period
44
Does the court have discretion to extend the limitation deadline?
Yes, but only in exceptional circumstances.
45
What is the limitation period for personal injury claims?
3 years from the accident or knowledge of injury.
46
When does the limitation period start for personal injury claims?
From the date of the cause of action or the date of knowledge of the person injured.
47
What is the date of knowledge for personal injury claims?
When the person injured first had knowledge that the injury was significant and attributable to negligence.
48
What is the limitation period for a tort claim?
6 years from the date damage is suffered.
49
When does the limitation period for a tort claim start?
The day after the damage is suffered.
50
What is the limitation period for a contract claim?
6 years from the date of breach of contract.
51
When does the limitation period for a contract claim start?
The day after the breach of contract.
52
When does the limitation period start for minors/children?
From their 18th birthday.
53
What is latent damage?
Damage that is hidden at the time the cause of action accrued.
54
What is the limitation period for latent damage claims?
6 years from the date of the cause of action or 3 years from the date of knowledge of the damage, whichever is later.
55
What is the overriding time limit for latent damage claims?
No later than 15 years after the date of the negligent act or omission.
56
Can a contractual time limit be shorter than the statutory limitation period?
Yes, it can be specified in the contract.
57
Who should be sued in an employment tort claim?
Both the employee and the employer.
58
Why should both the employee and the employer be sued in an employment tort claim?
The employer is vicariously liable for the actions of the employee.
59
Who can a consumer have a cause of action against in a defective product claim?
Both the retailer and the manufacturer.
60
Who must act on behalf of children and protected parties in a claim?
A litigation friend.
61
How should an individual defendant be sued?
On their own behalf.
62
How should a representative defendant be sued?
On behalf of a partnership or LLP.
63
How should a director defendant be sued?
On behalf of a limited company.
64
What should be checked before suing a defendant?
If they are on the verge of bankruptcy or liquidation.
65
Where can you search for information about a defendant's bankruptcy or liquidation?
Companies House (for companies) or bankruptcy search (for individuals).
66
What are the two types of claims?
Specified and unspecified.
67
What is a specified claim?
A claim with a fixed amount of money owed.
68
What is an unspecified claim?
A claim where the amount of money payable is determined by the court.
69
What is the purpose of the Practice Direction on Pre-Action Conduct?
To encourage parties to act reasonably and attempt to resolve matters before court action. (ONLY REASONABLE AND PROPORTIONATE STEPS ARE NEEDED TO RESOLVE MATTERS AND PROPORTIONATE COSTS ARE INCURRED) ## Footnote APPLICABLE IF PROTOCAL FOR SPECIFIC CLAIM NOT AVAILABLE (THERE ARE PROTOCOLS FOR DEBT, PERSONAL INJURY, PROFESSIONAL NEGLIGENCE AND CONTRUCTION AND ENGINEERING)
70
What may be deemed unreasonable conduct in ADR invitations?
Silence + refusal to participate.
71
What are the consequences of non-compliance?
Increased costs to be paid by defedand, reduced damages recieved by claimant, paused proceedings, or explanation. ## Footnote The court may impose sanctions for non-compliance with the PD. However, whilst the court may order the defendant to pay interest at a higher rate than normal, that rate cannot exceed 10% above base rate.
72
What is the purpose of a Letter Before Claim?
Exchange information under PDPAC.
73
What should be included in a Letter Before Claim?
Nature of claim, remedy sought, ADR proposals, key documents.
74
How long does the defendant have to respond to a Letter of Response in a straightforward claim?
14 days.
75
How long does the defendant have to respond to a Letter of Response in a complex case of professional negligence?
21 days to acknowledge + 3 months to respond.
76
How long does the defendant have to respond to a Letter of Response in a non-B2B debt claim?
30 days.
77
Where should money claims be started?
County Court Money Claims Centre.
78
Where should personal injury claims over £50k be started?
County or High Court.
79
Where should non-personal injury claims over £100k be started?
County or High Court.
80
What is the test for starting proceedings in the High Court?
Complex + high value and/or of public importance.
81
What must solicitors do to carry out advocacy in the High Court, Court of Appeal, or Supreme Court?
Take assessments to gain Higher Rights of Audience.
82
What are the general rules for determining which country's laws apply in proceedings issued in an English court after 1 January 2021?
Old jurisdictional rules of the EU are no longer valid.
83
What happens when the UK is involved in cases where each country applies its own domestic rules?
Each country applies its own domestic rules.
84
Can parties nominate the governing law of their choice?
Yes, with some exceptions.
85
What is an exception to the choice of law in contracts?
Unfair Contract Terms Act 1977.
86
What happens if an agreement has been reached in advance regarding the governing law of a claim?
The case will proceed on that basis.
87
No law chosen
Default provisions apply when no governing law is chosen.
88
Jurisdiction
The authority of a court to hear and decide a case.
89
2005 Hague Convention
UK is subject to the 2005 Hague Convention.
90
Effect of 2005 Hague Convention
Requires designated court to hear the case and dismiss proceedings in another contracting State.
91
Common Law
Rules that apply when the Hague Convention does not.
92
Service within England and Wales
Jurisdiction established if claim form served on defendant while present.
93
Rationale for service within England and Wales
Defendant's presence indicates acceptance of jurisdiction.
94
Objection to service within England and Wales
Defendant can object if English courts are not most appropriate.
95
Service outside England and Wales
Permission needed to serve documents outside jurisdiction.
96
Effect of service outside England and Wales
Courts can provide remedy for wrongs committed anywhere.
97
Granting service outside England and Wales
Contract made or breached in England or Wales, governed by English law, or has agreement conferring jurisdiction on English courts.
98
What is the meaning of oTort?
The act causing the damage was committed in England and Wales, or the loss was sustained here.
99
claim mixed between specified and unspecified claim?
Treated as an unspecified claim
100
contract breach case study:
1.existence of a contract 2. terms being relied on 3.breach of those terms 4. factual consequence 5.Damage and loss

FLK 1 - Dispute Resolution (7 decks)

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