Dispute Resolution Flashcards
1
Q
What are the five stages of litigation?
A
Pre-commencement, issuing proceedings, interim matters, trial, appeal/enforcement.
2
Q
What happens if a claim is statute barred as the limitation period has expired?
A
The claimant will not succeed in litigation.
3
Q
What is the limitation period for contract?
A
6 years from breach of contract.
4
Q
What is the limitation period for tort?
A
6 years from tort.
5
Q
If there is latent damage, when does the limitation period expire?
A
The later of 6 years from the date of the cause of action or 3 years from the date of knowledge (no later than 15 years total).
6
Q
Which elements are present in the PDPAC and protocls?
A
Litigation as a last resort, sufficient exchange of information, letter before claim, response, disclosure, reasonable & proportionate steps, before engaging in litigation both review position & see if issues can be agreed or at least narrowed.
7
Q
What are the consequences of failure to engage with the PDPAC?
A
Costs; C does not receive some/all interest on damages; D pays interest of up to 10%pa.
8
Q
When should a letter before claim be responded to?
A
Within 14 days or up to 3 months if complex.
9
Q
When does the PPDC apply?
A
Debt claims where the creditor is a sole trader/public body and the debtor is an individual or sole trader.
10
Q
When following the PPDC, what info does C have to provide?
A
Full info on debt owed, up-to-date statement of account with details of interest and charges, how debt can be paid, standard forms.
11
Q
How long does an individual/sole trader have to reply under the PPDC?
A
30 days; proceedings cannot be issued before this; creditor should give debtor extra time if they go to seek legal/debt advice.
12
Q
When does the pre-action protocol for professional negligence apply?
A
When a claimant wants to make a negligence claim against a professional.
13
Q
How does the PPPN work?
A
Notify pro in writing of intended claim; pro writes to insurers immediately & acknowledges notice w/in 21 days, C writes letter of claim, pro acknowledges in writing w/in 21 days then has 3 months to investigate & respond. If claim accepted, pro writes letter of settlement.
14
Q
Where would a claim with a value of £100k or less be issued?
A
The county court.
15
Q
When would you issue a personal injury claim in the High Court?
A
When the value is over £50,000.
16
Q
Where should money-only (debt) claims be sent to?
A
CCMCC in Salford.
17
Q
Where are specified debt claims dealt with?
A
CCBC at Northampton via the Money Claim Online (MCOL) website.
18
Q
For other county court claims, where are proceedings issued?
A
Any county court hearing centre (usually close to home/business).
19
Q
Where would proceedings valued at over £100k be dealt with?
A
The High Court (KBD for contract/tort).
20
Q
Which documents should be sent to the court to start proceedings?
A
Claim form (N1); partics of claim; documents that CPR requires to be annexed to claim form e.g., the contract.
21
Q
What figure should be used as the value of the claim in specified claims?
A
The precise figure sought including accrued interest.
22
Q
What figure should be used as the value of the claim in unspecified claims?
A
HC: ‘more than £100k/£50k (PI). CC: ‘not more than £10,000’, ‘more than £10,000 but not more than £25,000’, or ‘more than £25,000’.
Interest, costs, contributory negligence, and counterclaims should be disregarded.
23
Q
In PI claims, what else should be included on the claim form?
A
Whether C expects to recover more than £5k in PSLA.
24
Q
When are the legal representative’s costs fixed & what is the applicable part of the CPR?
A
Specified money claims; CPR Part 45.
25
What is the correct wording of the Statement of Truth?
[I believe] [The claimant or as may be believes] that the facts stated in this [name of the document] are true. [I understand] [The claimant or as may be understands] that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
26
What part of the CPR is relevant for adding/removing/substituting?
19
27
Who can apply to be added/substituted/removed?
An existing party or someone who wants to become a party, but no one can be added/substituted as a claimant unless written consent filed.
28
When is permission required to add/substitute/remove?
After the claim form is served.
29
What are the grounds for adding/substituting/removing?
Within limitation period - desirable.
Outside limitation period - LP current when proceedings start and original party named by mistake, has died or made bankrupt and interest/liability passed to another, or claim cannot be property carried on without the new party.
30
What are the permitted methods of service under CPR r 6.3?
Personal service, first class post or DX, leaving at specified place, fax/electronic comms, any method authorised by court.
31
When does an issued claim form need to be served?
Within 4 months of issue.
32
When is the claim form deemed to have been served?
On the second business day after it was sent.
33
Other than the claim form, if a document is served by personal service, delivery to a permitted address, fax, or email, when is it deemed to have been served?
If served before 4.30pm on a business day, that day; otherwise, the next business day.
34
When should the particulars of claim be served?
With the claim form or within 14 days of service of the claim form (provided this is within the 4 months limit).
35
What is the time limit for service of the claim form out of the jurisdiction and what procedure needs to be followed?
6 months; must obtain permission of the court; must be served with notice setting out grounds on which C is entitled to serve outside of Eng & Wales.
36
When must a defendant respond to a claim?
Within 14 days of service of the particulars of claim, or if an acknowledgement is filed within that 14 days, within 28 days of the particulars.
37
What happens if D does not file an AoS/defence within the time limits?
C can enter judgement in default.
38
How can judgement in default be set aside?
Mandatory ground (judgement entered too early or claim already paid in full) or discretionary ground (D has real prospect of successfully defending or some other good reason why judgement should be set aside).
39
What happens if C wants to discontinue proceedings?
They can and usually don't need permission, but will be responsible for costs.
40
What happens if jurisdiction is disputed?
The issue will be determined by the court.
41
What goes in the particulars of claim?
Legal & factual basis of the claim, details of alleged breach and remedies sought, interest claimed.
42
When allegations are denied/partially denied, who has the burden of proof?
The claimant.
43
How can statements of case be amended?
Agreement of the other party or permission from the court.
44
What Part of the CPR governs applications to the court?
Part 23.
45
What form is used to make an application?
N244.
46
When must applications be served on the opponent?
At least three clear days before the hearing (i.e., not the date of service, date of hearing, weekends, or bank hols).
47
When must without notice applications be served on the opponent and what are the respondent's options?
As soon as practicable after issue; they can apply to set aside/vary within 7 days of it being granted.
48
How are interim costs dealt with?
Summary assessment after the interim application if there is a clear winner; costs in the case (e.g. if there is a conditional order); no order as to costs (if neither party at fault).
49
When is summary judgement granted?
C/D has no real prospect of success and no other compelling reason. (can be set aside if the other party can prove one of these grounds).
50
What orders can be made in response to an application for summary judgement?
Judgement on the claim; striking out or dismissal of the claim; dismissal of the application; a conditional order.
51
What is the purpose of injunction?
To maintain the status quo.
52
What is the relevant case which sets out the guidelines for injunction?
American Cyanamid Co.
53
What are the guidelines that the court follows when deciding whether to grant an interim injunction?
1. Whether there is a serious question to be tried.
2. Whether damages are an adequate remedy for either side.
3. Where the balance of convenience lies.
4. Whether there are any special factors.
54
What is meant by a 'cross-undertaking' with reference to interim injunctions?
The applicant must undertake to the court to pay any damages that the respondent or anyone affected by the order sustains because of the injunction, if it later transpires that the injunction should not have been granted.
55
What injunctions are made without notice?
Freezing injunctions and search orders.
56
When and why can the claimant apply for interim payment?
After the time for acknowledging service has expired; when they have a strong case on liability and may suffer financial hardship/inconvenience during the proceedings.
57
When should an application for an interim payment be served and what should be included?
At least 14 days before the hearing.
The amount requested and what it will be used for, the amount of the sum of money likely to be awarded, and the reason for believing the grounds required by the CPR are satisfied.
58
If the respondent wants to counter an application for interim payment, when must they serve evidence relied upon?
At least 7 days before the hearing.
59
If the respondent in an interim payment application serves evidence in support of their position, can the applicant then reply with further evidence?
Yes, provided this is served at least 3 days before the hearing.
60
What are the grounds for interim payment and what part of the CPR concerns this?
D has admitted liability or C has obtained a judgement for damages to be assessed or the court is satisfied that if the case went to trial C would obtain judgement for a substantial amount (C must prove that they will succeed not that it is likely).
Part 25.
61
Once the court is satisfied that a party is entitled to interim payment, what discretionary grounds must the court consider?
Whether such an order should be made and if so what the amount should be.
62
How does allocation to a track work?
After defence is filed, court officer provisionally decides which track appears to be correct, then parties served with notice of allocation & asked to file and serve directions questionnaires.
63
In claims that are allocated to the multi-track, what other documents should be prepared?
Case summary, disclosure report, costs budget, budget discussion report.
64
What form is the directions questionnaire on?
N181.
65
What are the consequences of failing to file the directions questionnaire?
If claim is for money in the CC, court serves a notice on defaulting party requiring compliance w/in 7 days - if they fail to do so, their statement of case will be automatically struck out; otherwise, court makes such order as considered appropriate.
66
Where will a claim for £10k or less be allocated?
Small claims track.
67
Where will a claim for £10,001 - £25k be allocated?
Fast track.
68
Where will a claim for more than £25k be allocated?
Multi track.
69
Other than claim value, what is taken into account when considering allocation?
Remedy sought, complexity, no. of parties, value of counterclaim, amount of oral evidence, importance to non-parties, views & circs of parties.
70
What are the typical directions on the small claims track?
Parties each delivering to the others copies of all documents they intend to rely on; requirement to bring original docs to hearing; no expert evidence without court's express opinion.
71
On the fast track, when should disclosure be filed?
4 weeks from allocation.
72
On the fast track, when should witness statements be filed?
10 weeks from allocation.
73
On the fast track, when should expert reports be exchanged?
14 weeks from allocation.
74
On the fast track, when will the court send the parties pre-trial checklists?
20 weeks from allocation.
75
On the fast track, when should parties file pre-trial checklists?
22 weeks from allocation.
76
On the fast track, when is the trial listed?
30 weeks from allocation.
77
How does the court address complicated multi track matters?
Fixing a case management conference for appropriate directions to be made.
78
When is a case summary prepared and what should be included?
In most MT cases for the CMC; brief chrono, factual issues that are agreed and those that aren't, evidence needed to decide those issues in dispute.
79
What directions are made on the multi-track?
ADR, timetable to trial, review of CMC, expert evidence, simultaneous exchange of factual evidence (witnesses), disclosure of docs and inspection, whether further info is required to clarify a party's case.
80
What is included in a costs budget?
Detailed breakdown of incurred costs and estimate of budgeted (future) costs.
81
When must costs budgets be filed?
With the directions questionnaire for claims of less than £50k, or for all other claims no later than 21 days before the first CMC.
82
What is the next step after costs budgets are filed?
Parties must complete a budget discussion report no later than 7 days before the first CMC (Prec R).
83
What happens if someone files their costs budget late or not at all?
Unless the court orders otherwise, they will automatically be treated as having filed a costs budget limited to only court fees.
84
What is a costs management order used for?
To ensure costs are kept in check, and made unless the judge is satisfied that the litigation can be conducted justly & at proportionate cost. In the order, the court records the extent to which incurred/budgeted costs are agreed and for those that are not agreed, the court will make appropriate revisions & then record the approval in the order.
85
When will a statement of reasons be required with regard to costs?
If there is no costs management order, and there is more than 20% between the costs claimed and costs set out in budget. The court then decides whether the additional amounts should be granted.
86
What is legal advice privilege?
Comms between a client & sol prepared for the sole/dominant purpose of legal advice.
87
What is litigation privilege?
Comms between client/lawyer and third party, provided they came into existence after litigation was contemplated/commenced and made for the sole/dominant purpose of obtaining advice or evidence for litigation.
88
What documents is a party entitled to inspect?
Those contained in Part 1 of their opponent's disclosure.
89
How can a claim for privilege be challenged?
An application under CPR r 31.19.
90
What form is used for standard disclosure?
N265.
91
What goes in Part 1 of disclosure?
Documents which the client has control of and does not object to the opponent inspecting/copying them.
92
What goes in Part 2 of disclosure?
Documents which the client has control of but objects to the opponent inspecting them.
93
What goes in Part 3 of disclosure?
Documents which the client has had but are no longer in their control.
94
Is hearsay evidence admissible?
Yes, unless it contains irrelevant information or opinion evidence that a witness of fact cannot give.
95
Who can give an opinion in evidence?
Experts (not witnesses of fact).
96
What are the grounds for permission to appeal in a civil trial (first appeal)?
The appeal has a real prospect of success or some other compelling reason for the appeal; if the appeal is to the CoA or SC, there must also be an important point of principle or practice.
96
What is the time limit for appeals?
21 days against a CC/HC decision or 28 days for leave to appeal from CoA/SC.
96
When will an appeal be granted?
The decision of the lower court was wrong as to law/facts/exercise of discretion, or unjust due to a serious procedural irregularity.
97
How are costs determined on each track?
Small claims: legal costs are not recoverable, only disbursements.
Fast track: summary assessment.
Multi track: detailed assessment.
98
What is the process for summary assessment of costs?
At least two days before a fast track trial or 24 hours before an interim hearing, the parties must file and serve statements of costs. At the end of the trial, the court determines the costs order(s) that should be made.
99
How does a detailed assessment of costs work?
Within 3 months of judgement/order, receiving party serves Notice of Commencement of detailed assessment proceedings, together will bill of costs and evidence in support.
100
How can a bill of costs be challenged?
Within 21 days, payer serves points of dispute; within 21 days, receiver files a reply; receiver then files a request for assessment hearing w/in 3 months of expiry of period for commencing detailed assessment proceedings; if costs claimed are less than £75k, judge decides what costs are allowable in absence of party; if either party unhappy with this, they can request an oral hearing w/in 21 days, but if they cannot achieve an adjustment in their favour of at least 20%, they will be ordered to pay the costs of the hearing.
101
How do costs on the standard basis work?
If the item is not reasonably incurred, it is disallowed. If the item is reasonably incurred but unreasonable in amount, the item is recoverable but reduced. Then it is considered whether the total figure is proportionate; if so, total costs are allowed, and if not, they will be disallowed or reduced.
102
If costs are ordered on the standard basis and there is doubt, in whose favour is this resolved?
The paying party.
103
What is the difference between the standard and indemnity basis?
On the indemnity basis, there is no test of proportionality, and any doubts are resolved in favour of the receiving party.
104
Can costs orders be made against non parties?
Yes, if the court is satisfied that the non-party was the real party interested in proceedings or was responsible for bringing proceedings; the third party has to be added as a party to proceedings and may attend the hearing when costs are determined.
105
Who can apply for security for costs?
The defendant.
106
When can the court make an order for security for costs?
When it is satisfied it is just in all the circumstances and one or more of the conditions in Part 25 applies.
107
What are the conditions for security for costs under Part 25?
C resides outside a 2005 Hague Convention State, C is an impecunious company, C has taken steps to make enforcement difficult.
108
What are the factors concerning justness of making an order for security for costs?
Strength of the claim and defence, claimant's ability to provide security, causes of claimant's impecuniosity (i.e. if D caused this), whether there are sufficient assets within the jurisdiction to enforce against; timing of the application.
109
What is the 'relevant period' for a Part 36 offer?
No less than 21 days.
110
What must a Part 36 offer contain?
It must be clear it is made pursuant to P36, set out the relevant period, and state whether it relates to the whole claim or part of it and whether it takes into account any counterclaim.
111
What happens if D makes a P36 offer which is accepted by C within the relevant period?
D must pay the sum within 14 days, or C can enter judgement. C is also entitled to costs up to date on which notice of acceptance is served on D. If costs not agreed, judge will assess on standard basis.
112
What happens if C makes a P36 offer that is accepted by D within the relevant period?
C is entitled to costs up to the date of acceptance on the standard basis.
113
What is the consequence of C accepting D's offer after the relevant period expires, if parties cannot agree on costs?
Usually, D will be ordered to pay C's costs up to the date on which the RP expired, and C will pay D's costs thereafter until the date of acceptance.
114
What is the consequence of D accepting C's offer after the relevant period expires?
D will usually be ordered to pay C's costs up until date of acceptance.
115
What happens if C makes a P36 which is not accepted, and at trial they win and the sum awarded equals or exceeds their offer?
Usually, D will be ordered to pay:
1. Damages and interest.
2. If the damages are up to £500k, an additional 10% on top of the sum awarded.
3. If the damages are over £500k and up to £1m, 10% of the first £500k and then 5%, up to a max of £75k.
In addition, from Day 22 onwards, the % of interest that is charged on damages increases to a rate not exceeding 10% above the base rate.
D will also pay costs on the indemnity basis from the day after the RP expired until judgement, and can pay interest on costs of up to 10% above base rate.
116
What happens if C makes a P36 that is not accepted and wins at trial but does not beat their own offer?
No extra penalty is opposed on either party - P36 has no effect.
117
What happens if D makes a P36, C does not accept it, and C wins at trial and beats D's offer?
P36 has no effect.
118
What happens if C makes a P36 that is not accepted and then loses at trial?
There are no extra penalties - P36 has no effect.
119
What happens if D makes a P36, C does not accept and wins at trial, but does not beat D's P36?
A split costs order - D pays C's costs on standard basis until RP expired, and then C pays D's on standard basis from expiry of RP to judgement.
120
What happens if D makes a P36 which C does not accept and then C loses at trial?
The general rule will apply so C will pay D's costs (as loser pays), but the penalty for not accepting the P36 is that C will pay interest on those costs from Day 22 until judgement, at 1% or 2% above base rate (usually).
121
What are the options for enforcement of a judgement?
Order to take control of goods, charging order, third party debt order, attachment of earnings order.
