Dispute Resolution Flashcards
1
Q
What are the characteristics of arbitration?
A
One or more arbitrators
Make a decision on the merits of the case
Binding on all parties
Parties must have agreed to arbitration
2
Q
What are the advantages of arbitration?
A
It is private and confidential
Cheaper and quicker than litigation
Parties choose the arbitrator
Decision will be imposed on the parties
3
Q
What are the disadvantages of arbitration?
A
Difficult to challenge or appeal the decision
No public hearings
4
Q
What is mediation?
A
Where a third party assists the negotiations between two or more persons in a dispute to help them arrive at a solution
5
Q
What are the advantages of mediation?
A
Private and Confidential
High success rate
Party control
Flexibility
6
Q
What are the disadvantages of mediation?
A
Wasted resources of no decision reached
Settlement not guaranteed
7
Q
What is the limitation period for contract claim?
A
Six years from the date at which the cause of action accrued (date of breach of contract)
8
Q
What is the limitation period for a tort claim?
A
six years from when the individual suffers damage or if this expires then three years from when the damage is uncovered
9
Q
What is the limitation period for a personal injury claim?
A
Three years from the date of damage suffered or date of the individual knowing damage is suffered
10
Q
What is the limitation period for a child or disabled person?
A
There are no limitation periods until the disability ends or until child becomes an adult
11
Q
What is the first step in pre-action protocol?
A
Claimant must send a letter of claim to defendant
12
Q
When should the defendant respond to a letter of claim?
A
Not more than 14 days in a simple case and no later than 3 months in a complex case
13
Q
What are the consequences of failing to follow pre-action protocols?
A
Directions on costs and case management
14
Q
When may a claim be started in the High Court?
A
If it the claim is worth more than £100,000 is may be started in the High Court
15
Q
When must a claim be started in the County Court?
A
Claims worth £100,000 or less MUST be started in the County Court
16
Q
Where should personal injury claims be heard?
A
If the claim is worth £50,000 or more then it should be started in the High Court.
If it is less than £50,000 then it should be heard in the County Court
17
Q
What are the requirements for sending a case to the High Court if it meets the financial threshold?
A
Complexity of the case
Financial value of the claim
Public Interest
18
Q
When must a claim form be served after being issued?
A
Must be served within 4 months of being issued
19
Q
When is a claim form deemed to be issued?
A
After being stamped
20
Q
When can the court add or remove a party after the limitation period has ended?
A
If the limitation period was current when proceedings had started and the addition or substitution is necessary
21
Q
Who can be added as a claimant?
A
No-one can be added or substituted as a claimant unless they have given their consent in writing and this has been filed at court
22
Q
When must the claim form for be served outside UK jurisdiction?
A
Claim form must be served within 6 months of being issued
23
Q
When is a claim form deemed served?
A
Second business day after completion of the relevant step (regardless of method of service)
24
Q
What should you do if you are unsure of the defendants address?
A
Think of an alternative place of method for service to be effected
25
If the particulars of claim are not served alongside the claim form, when must they be served?
Within 14 days of service of the claim form
26
When must the defendant respond to the proceedings?
After receiving the particulars of claim
27
When must the defendant file an acknowledgement of service?
if they do not have time for a full defence yet.
Must be served 14 days after particulars of claim (if its been served with the claim form and if it arrives later)
28
What are the options for the defence in acknowledging the service of the claim?
Admit the claim
Defend the claim
Defend part of the claim
Contest Courts jurisdiction
29
When should the defendant file a defence?
Within 14 days of service of particulars of claim
30
Can the parties agree to a time extension between themselves?
Yes they can extend the time to file a defence for up to 28 days. Defendant must inform the court
31
When can the claimant file for default judgement?
If the defendant fails to respond to the particulars of claim in the relevant time period and where the claim is for a specified sum of money
32
When MUST the court set aside a default judgement?
If judgement was wrongly entered by the court (error in time limits)
33
When can a claimant NOT file for default judgement?
If the defendant has applied for summary judgement or if the defendant has satisfied the whole claim
34
When MAY the court set aside a default judgement?
If the defendant has a real prospect of defending the claim
There is another good reason for the judgement to be set aside
35
What are the grounds for a defendant to challenge the courts jurisdiction?
Order permitting the extension of the claim form should not have been given
Claim form has been served out of time or at wrong address
Some other country has jurisdiction
The parties had agreed to arbitration or mediation
36
When must the claimant apply to the court (instead of file) for a default judgement?
When you are seeking money as well as a non-financial remedy???
37
What must statements of case documents be verified with?
A statement of truth
38
What is the procedure for a party requesting further information?
Party serves written request
Responding party must write a response and send to the other party and file at court
If the responding party has not responded within 14 days, then the party can make an application without notice to the court
39
When can a party make an amendment to a statement of case?
Anytime before it is served
40
If the other party does not consent to an amendment, can the court grant permission?
If the claim form has NOT been served, then no permission is needed from the court
If claim form HAS been served then court permission is required and will only given if the amendment is desirable
41
What must a party do if they are served with a counter claim?
They must serve either a defence or acknowledgement of service
42
What is the overriding objective?
To deal with cases justly and at proportionate cost
43
When can a court strike out a statement of case?
No reasonable grounds for challenging the claim
Abuse of process
Failure to comply with rule, practice direction
44
When should a claim be allocated to the small claims track?
Value of less than £10,000
45
When should a claim be allocated to the fast track?
When the value is more than £10,000 but not more than £25,000
Trial should not last longer than one day
Oral expert evidence is limited to 4 experts
46
When should a claim be allocated to the multi-track?
Claim of more than £25,000
47
What does the court disregard when determining the financial value of the claim (for allocation)?
Any amount not in dispute
Any claim for interest
Costs
Contributory Negligence
48
What are the limits for personal injury cases in small claims track?
Small claims for PI is £1500
Road traffic accidents is £5000
49
What is the typical timetable for fast track cases for disclosure, exchange of witness statements, exchange of experts reports, sending pre-trial checklists, filing of pre-trial checklists and hearing?
disclosure: 4 weeks
exchange of witness statements: 10 weeks
exchange of experts reports: 14 weeks
sending pre-trial checklists:20 weeks
filing of pre-trial checklists: 22 weeks
hearing: 30 weeks
*periods run from the date of allocation
50
Who should attend a CMC?
Legal representative familiar with the case
With sufficient authority to deal with any issues should they arrive
51
When is a costs management conference required or not?
All multi-track cases
Exceptions: cases with value of more than £10 million
52
How does the court decide on the relief from sanctions in the Denton test?
1. Identify the seriousness and significance of the breach (has it impacted future hearing dates)
2. Consider why the breach occurred
3. Evaluate all circumstances to enable the court to deal with the case justly and at proportionate cost
53
Who can apply for summary judgement?
Claimant and Defendant
54
What can a party apply for a summary judgement on?
Whole of the claim
Part of the claim
55
When may the court give summary judgement?
When a party has no real prospect of succeeding on the claim or defence AND
Has no other compelling reason why the case or issue should be disposed of at trial
56
When can a defendant apply for summary judgement?
Only after the claimant has served the particulars of claim.
AND the defendant has filed either an acknowledgement of service or defence
57
What orders are available to the court after summary judgement?
Conditional Orders: pay part of the claim or take a specified action
58
What is an interim payment application?
Made by the claimant on account of damages it hopes to be awarded at trial
59
What are the conditions for an interim payment?
-Defendant has admitted to paying some damages (liability)
- Claimant has attained judgement against the defendant for damages
- If satisfied that if the case went to trial, the claimant would obtain a large sum of money
60
How much the court award for interim payment?
Court must not order a payment or more than reasonable proportion of the likely amount of judgement
61
What evidence is needed for an interim payment?
Written evidence served on each party
Respondent (7 days before hearing)
Response to Respondent (3 days before hearing)
62
What are some examples of interim injunctions?
Prohibitory
Mandatory
Freezing Order
63
What must the court be aware of when deciding whether to award an interim injunction?
Is there a serious question to be tried and
Balance of favour in making an interim order (if damages would be sufficient, then injunction will not be awarded)
64
When must an interim injunction application be made?
Not less than three days before the hearing
65
When must a solicitor inform the client of a costs order if the client was not present?
Within 7 days of the order being made and giving reasons
66
What is standard disclosure?
Requires a party to disclose
- Documents on which they rely
- Documents which adversely affects their own case, another partys case or support another partys case
- Documents he is required to disclose by Practice Direction
67
Does the document need to be in the party's control for disclosure?
Yes
- Document must or have been be in the physical possession
- party has or had the right to the posession of the document
- party has right to inspect or have copies of the document
68
What is a party's duty to search?
Party has a duty to reasonable search for documents
69
What should a solicitor do if their client refuses to disclose certain documents?
The solicitor should cease to act
70
What are the stages of disclosure in the multi-track?
1. Preparation of the disclosure report to be filed and served on the other parties 14 days before the cmc
2. Meeting to agree directions (not less than 7 days before cmc)
3. The CMC
71
What are the available orders for disclosure?
Order dispensing with disclosure
Order directs disclosure on a issue by issue basis
72
What disclosure should be send at the pre-action stage?
Key documents which is has relied for the claim or defence and key documents to help the other party understand
73
What is the general rule on inspection?
A party to whom a document has been disclosed, must be able to inspect
74
What are the three exceptions to the general rule on inspection?
-Document is no longer in the control of the party who disclosed it
- Party disclosing has a right to withhold inspection
- Where a party considers it to be disproportionate
75
What documents can a party not inspect and how can they go about inspecting it?
Documents mentioned in expert report and they can contact the other party for permission to inspect those documents, if this is refused, they can apply to the court (court can also refuse)
76
What is legal advice privilege?
All communications between the solicitor and the client relating to the transaction on which the lawyer has been instructed, is privileged
77
What is litigation privilege?
Communication between parties or their solicitors and third parties for the purpose of obtaining information or advice on existing or contemplated litigation is privileged
78
What are the conditions for litigation privilege?
- Litigation must be in contemplation or in progress
- Communication must be made for the sole or dominant purpose of litigation
- Litigation must be adversarial
79
What is the rule on without prejudice communications?
statements made in negotiations entered into between parties to litigation with a view to settling that litigation are inadmissible and therefore cannot be given in evidence
80
Who can waive privilege?
A solicitor can only waive privilege with the consent of their client
81
What happens if a party sends a document to the other side by mistake?
Where a party inadvertently allows inspection of a privileged document, this party may only use its contents with the permission of the court.
The solicitor should also not disclose to their client any of the contents of the document
82
How must a claimant withhold inspection of a document?
Claimant must state his right to do so in writing in his list of documents
83
What is the automatic sanction for failing to exchange witness statements on time?
The witness may not be called to give evidence unless the court gives permission
84
If a witness is unable to give a witness statement, what should be sought instead?
Witness Summary
Sets out the nature of evidence the witness is to give
Courts permission must be sought on notice and before the time agreed to exchange statements
85
What is an affidavit?
A statement which is made on oath and is sworn to be true
86
When does the defendant have the burden of proof?
Contributory negligence
87
When can a party rely on hearsay evidence?
Party must provide a notice of proposal to adduce hearsay evidence
88
What happens if a client or individual wants to give evidence which is not contained in their witness statement?
Court may allow them to give the evidence in relation to new matters if there is good evidence not to confine the evidence to that of their witness statement
89
Can witness statements for one trial be used for another trial?
Yes, witness statements which have been put in for trial in public may be used for proceedings other than which they have been served
90
If the court orders an unless order, how can the parties extend any time limits?
Must be in writing
91
When should a trial bundle be filed?
Not more than seven days and not less than three day before the start of the trial
92
What should happen if there is a question of authenticity of a document?
Notice to admit should be served within seven days of disclosure otherwise the other party is deemed to have admitted the authenticity of the document
93
What is the purpose of a witness summons?
Compel attendance at trial
94
When is a witness summons binding?
When it is served at least seven days before the date the witness is required to attend court and it is binding until the conclusion of the trial
95
What must happen if new matters come to light some time before the trial?
The court may give permission for a witness to amplify their witness statement, give evidence in relation to new matters since the exchange of witness statements.
There must be good reason not to confine the wintess to their witness statement
96
Can an order by the court be amended?
Once a judgement or order of the court has been sealed it cannot be amended.
Unless there has been an accidental error or slip (slip rule) in which case the party can apply without notice to have it changed
97
What are the two grounds for appealing from a lower court?
Decision was wrong in either fact or law
Decision was unjust because of an irregularity in the proceedings
98
What are the conditions for new evidence to be presented at an appeal?
- Evidence could not be obtained by reasonable diligence at trial
- evidence would have an important influence on the outcome of the case
- evidence must be presumed to be credible
99
When is the court's permission required for an appeal?
Where the appeal is for a decision of a judge in the County Court or High Court
100
If the court refuses permission to appeal, what can the appellant do?
They can send an appellants notice to the relevant appeal court. If this refused, the appellant can still have a oral hearing to determine if the appeal can be permitted
101
What are the time limits for appealing a decision?
Time is of the essence and the appellant should file the appellants notice within 21 days after the date of the decision
102
Should a Part 36 offer be disclosed in the course of proceedings?
No it should not, only relevant in determining costs
103
What are the grounds for appealing from the High Court to the Court of Appeal?
There must be a real prospect of success OR
there is some other compelling reason for the appeal to be heard
104
What are the requirements for a Part 36 Offer?
Be in writing
Clear it is made pursuant to part 36
Specify a period of not less than 21 days which the defendant will be liable for claimants costs
State whether it takes into account the whole claim, part of the claim or counter claim
105
How long is a Part 36 offer open for acceptance?
It is open for acceptance until it is withdrawn
106
Once a part 36 offer is accepted, how long does the party have to pay it?
14 days
107
What is the costs effect where the part 36 offer is made by the claimant and the defendant accepts within the relevant period?
The defendant will pay the claimants costs of the proceedings to the date of the notice of acceptance on the standard basis
108
What is the effect of the defendant accepting a claimants part 36 offer outside the relevant period?
Defendant will pay the claimants costs of the proceedings to the notice of the acceptance on the standard basis
109
What is the effect of the claimant accepting the defendants part 36 offer within the relevant period?
Defendant will pay the claimants costs of the proceedings to the date of the notice of acceptance on the standard basis
110
What is the effect of the claimant accepting the defendants part 36 offer outside the relevant period?
Defendant will pay the claimants costs of the proceedings to the date of the expiry of the relevant period on a standard basis
Then the claimant will pay the defendants costs from the date of expiry of the relevant period to the date of notice of acceptance on the standard basis
111
What is the effect where a part 36 offer is made by the claimant and it is rejected or ignored and the claimant is successful at trail and awarded at least the amount which was offered?
- additional 10% of damages (up to £500,000)
- up to the expiry of the relevant period, interest on damages and defendant pays claimant costs
- from expiry of relevant period to the date of judgement, defendant could be liable to pay interest on damages, pay claimants costs on an indemnity basis
112
What is the effect if a defendant makes a part 36 offer and ???
113
What is the core duty of an expert?
Overriding duty to assist the court
114
What are the options for a party who disagrees with a single joint expert?
- instruct another expert (must seek permission of the court)
- cross-examine the single joint expert
- obtain a second report and send this to the expert prior to trial
115
What happens after exports reports have been exchanged (on multi-track with multiple experts)?
- discussion between experts
- question to experts (must be done within 28 days on the report being served on them)
116
How are costs dealt with in the small claims track?
Costs are limited to fixed commencement costs and third party costs such as court fees and expert fess
117
How are costs dealt with at the fast track?
Legal costs and disbursements are recoverable from the other party, though they are summarily assessed (based on statement of costs)
118
How are costs dealt with at the multi track?
Legal costs and disbursements are recoverbale from the other party, however, they are generally subject to detailed assessment
119
If a party is subject to a detailed assessment for costs, what must they comply with?
- party in whose favour the costs order has been made must serve the other party a notice of commencement within three months of date of judgement or order
- Party paying must serve any points of dispute within 21 days
120
What happens at an assessments hearing for the dispute of costs?
- If amount is less than £75,000, then court will carry out provisional assessment on the documents submitted without a hearing and without parties present
- If amount is more than £75,000 then the matter will proceed to a hearing in front of a Costs Judge or District Judge
121
What does the court consider when using the standard basis for costs?
Court will consider every item of costs claimed and decide if they were
- proportionately and reasonably incurred
- proportionately and reasonable in amount
The court can either disallow, reduce or award the full value of an item, if there is doubt, it is decided in favour of the PAYING party
122
What does the court consider when using the indemnity basis for costs?
Court will look at whether costs are reasonably incurred and reasonable in amount
In cases where the court is in doubt, it will be resolved in favour of the receiving party
123
When can anon-party costs order be given by the court?
Where a third party
- substantially controls the course of litigation
- stands to benefit form the successful outcome of the proceedings
124
Who can make a security for costs order?
only can be made by the defendants
125
What must the applicant prove to be successful in a security for costs order?
- it is just in the circumstances to make an order
- one of the following conditions applies
claimant is resident outside of England and Wales
claimant is a company and there is reason to believe that it will be unable to pay the defendants costs
claimant has taken steps in relation to their assets that would make an enforcement of costs order more difficult
126
When does a qualified one way cost shifting apply?
Only applies to personal injury claims
127
How does the qualified one way cost shifting work?
If claimant is successful, the defendant will have to pay their costs
If defendant is successful in defending the claim they will not be able to successfully recover their costs from the claimant
128
What is an oral examination (enforcement of money judgements)?
It is designed as a way for the claimant to work out whether it is worthwhile taking enforcement action and if so, what method would be most effective
129
What are the different methods of enforcing of money judgements?
Taking control of goods order
Third party debt orders
Charging orders
Attachment of earnings order
130
What does a taking control of goods order entail?
allows a defendants goods or assets to be seized then sold at auction
it is only suitable in circumstances where the defendant owns assets which are moveable and can be picked up
131
What should the claimant do if they wish to claim on the assets outside of the jursidiction?
The claimant should register the judgement with the country in which the defendant holds their assets and then using one of the countrys local ways to enforce it
132
What order should the court give if the parties wish to agree terms beyond the court would generally order and would be confidential?
Tomlin Order
133
When there is a contract claim outside of England, where should the claim be heard?
Applicable law is the country where the characteristic performer resides (is the contract manifestly more connected to another country)
- unless land is involved, then it is where the land lies
134
When there is a tort claim outside of England, where should the claim be heard?
In the country where the damage occurs
