Dispute Resolution Flashcards
(98 cards)
1
Q
What is ADR?
A
Ways of resolving dispute other than trial
2
Q
When can settlement be pursued?
A
At any stage in proceedings
3
Q
What ADR can take place alongside court proceedings?
A
Mediation
4
Q
What type of ADR will replace court proceedings?
A
Arbitration
5
Q
What are the key types of ADR?
A
Negotiation – communicating process aimed at reaching agreement
Mediation – impartial mediator. Still about reaching agreement.
Arbitration – Alternative to litigation. Governed by rules and statute. Impartial adjudicator has power to determine outcome.
6
Q
Why would you use ADR over litigation?
A
Better relationships
Less expensive
Privacy/confidentiality
Saves time
Flexibility of outcomes
7
Q
Can court require that ADR is used?
A
Yes – court can order ADR to be used.
(Churchill case)
8
Q
What are some ways in which the Court/CRP encourages ADR?
A
Updates to CPS
Costs
Stay of proceedings
Pre-action rules
Budget
DQ
9
Q
How should a settlement be recorded?
A
Through writing
Where proceeding NOT issued: settlement agreement
Where proceedings issued: Consent Order + sometimes a Tomlin Order + settlement order?
10
Q
What is a Tomlin Order?
A
More complicated type of order that also provides a settlement agreement and stays the proceedings
For things that can’t usually go into the Consent Order. E.g Provisions for future trade in which the Court has no power to order.
11
Q
Can you face penalties for not engaging in ADR?
A
Yes, Court can impose sanctions for unreasonably refusing to engage in ADR.
12
Q
What is the overriding objective?
A
CPR 1.1
To enable the court to deal with cases justly and at proportionate cost. This involves:
Ensuring that parties are on equal footing and can participate fully in proceedings
Saving expense
Dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of issues and the financial position of each party.
Ensuring the case is dealt with expeditiously and fairly
Allotting an appropriate amount of the courts resources to each case
Promoting or using ADR
Enforce compliance with rules, practice directions and orders
13
Q
What is a limitation period?
A
Time within which claim must be brought, otherwise C will have a full defence
14
Q
What are the limitation periods for different types of cases?
A
Contract and Tort – 6 years
PI – 3 years
15
Q
What are the key docs in a pre-Action Protocol?
A
Letter of Claim
Letter of Response
16
Q
When do you issue proceedings in County Court?
A
PI claims less than £50k
Non PI claims up to £100k
17
Q
Where do you commence other claims?
A
Either county court or high court depending on their complexity, value and importance to the public
18
Q
What if you commence proceedings in the wrong court?
A
Court can transfer proceedings to the right court but may impose fines for this mistake.
19
Q
How do you issue proceedings?
A
C should take claim form to court to be issued and sealed.
Copies for C, D and the Court.
C to pay issue fee to court.
20
Q
Why is it important when the claim form is issued?
A
The date that it is issued stops the limitation period.
21
Q
What to do after Claim form is issued?
A
Serve this on the Defendant
22
Q
How can claim be served?
A
Personally on D
Delivering or leaving document at a permitted address
First class post
Fax (D must specify that this is ok)
Electronically e.g. email (D must have said this is ok)
Document exchange (DX)
23
Q
How long do you have to serve the claim form after proceedings are issued?
A
4 months (midnight, calendar date)
24
Q
What are the Particulars of Claim?
A
Explain more details about what the claim is about.
Can be served with CF or can follow within 14 days of the CF
25
How can other documents be served?
Same as for CF
26
What is the deemed date of service?
Rules prescribing the date the court considers document to have been served, irrespective of the date it was actually received by the respondent.
27
When is the deemed service for CF?
Second business day after completion of step in CPR 7.5.
28
When is deemed service for other documents?
Post/DX – second day after posting, if a business day (otherwise next business day)
Instant method – before 4:30pm on business day = same day, otherwise next business day
29
When does D need to respond?
Not until it has received POCs
Within 14 days of POCs being served
30
How can a defendant respond to proceedings?
Acknowledgement of service
Defence
Admission
31
What if the D doesn't respond?
A judgement may be entered into automatically.
C wins
32
Why would you want to acknowledge service?
More time to file a defence (extended to 28 days after service of POCs, and can have another 28 days after that)
Can dispute court's jurisdiction
33
What are the key rules to count time?
Day on which period begins is not counted
Day on which period ends is included, unless it ends on an event e.g. hearing
Periods of 5 days or less – do not count weekends
If court office is closed – it is in time if done on next open day (only applicable to acts that need to be done at court office)
34
What if a judgement default is wrongly entered?
Court must set it aside
35
When is a default judgement wrongly entered?
If court was never entitled to it in the first place
If proceedings were never properly served, and therefore the time limits for respondent didn't start to run.
36
When can a defendant appeal for a judgement to be set aside?
If they think that they have merits to win the claim
37
What is a statement of case?
The way in which both, C and D set out their respective positions
Sets out facts which are relied on
38
What are the most common statements of case?
Claimant – claim form, POCs, reply, defence to counterclaim
Defendant – defence, counterclaim
39
What must a CF include?
Names and addresses
Nature of claim (NOT POCs)
Remedy sought
Statement of value for high court
40
What do POCs include?
Duty
Breach
Causation
Loss
PI claims – C's DOB, details of injuries, schedule of past and future expenses and losses
Written agreement or attach oral agreement: details
Claim for interest
41
What should letter of Response include?
For each allegation: admit, deny (with reasons), or require further proof
42
What if statement of case is unclear?
Apply to strike it out
Apply for summary judgement
Ask for clarification
Use procedure in CPR 18 – request further info
43
When can a party amend a statement of case?
Anytime before it is served
Otherwise court's permission is required.
Amendment must be desirable
44
What does tailored to the dispute mean?
Court will deal with different claims in different ways
45
What are the 4 allocation tracks for claims?
Small claims track – £10k or less; party rarely allowed to recover anything other than legal costs
Fast track – up to £25k; trial 1 day max; oral expert evidence one per party in two fields max
Immediate track – up to £100k; trial 3 days max; oral expert evidence two per party
Multi track – everything else
46
How does the court decide which track the case should be allocated to?
Court will send out notice of proposed allocation
Parties will send in directions questionnaire – indicating which witnesses and experts the parties intend to rely on
Court will then allocate – can also have a hearing to help allocate
47
When allocated to multi track – what happens?
Case management conference (CMC or CCMC)
Budget must be filed no less than 21 days before CMC
48
What happens at a CMC?
2 docs need to be filed – disclosure report (no less than 14 days before CMC) and draft directions (no less than 7 days before CMC)
If parties can agree to draft directions then court may vacate and just seal the directions
49
What is the costs management regime?
Parties exchanging info about costs, also about costs not yet incurred at an early stage in the litigation
Assessment of future costs
50
What is the result of a CMC?
Directions
Costs management order
51
What does the costs management order record?
Extent to which budgets are agreed
Sets figures
52
What happens if you fail to file a budget on time?
Sanctions are imposed
Party is automatically treated as having filed the budget, compromising only the applicable court fees
So the party can only later recover any applicable court fees
53
Can you revise a budget?
Yes – must be submitted to other party and the court for approval
54
What are interim applications?
Applications made to the court usually in an interim period between the commencement of proceedings
Can be made at any stage in the proceedings
55
What are some examples of interim applications?
Extending time period for taking a particular step in proceedings
Applying to amend statement of case
Requiring other party to provide further info
Requesting specific disclosure
Seeking to rely on expert evidence
56
How do you make an interim application?
Application notice, supporting evidence and draft order filed at court with relevant fee
57
When can you make an application without notice?
Urgent matters
Object would be defeated
58
What is a summary judgement?
Enables court to dispose of claims or issues without the need for a full trial
59
What are the grounds for when a summary judgement can be sought?
C has no real prospect of succeeding on the claim OR
D has no real prospect of successfully defending the claim AND
There is no other compelling reason why the case or issue should be disposed of at trial.
60
How do you apply for a summary judgement?
Largely the same as any other application.
With notice or without notice
Issue, service, further evidence, hearing
Issue – Application notice
Service – application notice (at least 14 days before hearing)
Further evidence – respondent files at court + serves evidence on applicant at least 7 days before hearing, applicant to serve evidence in reply at least 3 days before hearing
THEN both parties exchange statements of costs no less than 24 hours before hearing
Hearing
61
What is an application for security for costs?
Application made defendant (applicant) who is concerned that the claimant (respondent) will not be willing/able to pay D's costs should the claim be successfully defended.
Court can order that security be given in various ways, but most commonly it requires a payment into the court by C so that those funds are available to meet any costs order later made in D's favour
CPR 25.13 must be satisfied
62
What is an interim payment?
Payment on account of damages, debt or other sum
63
When can a court order interim payments?
D admits liability to pay damages
C has obtained judgement against D
Satisfied that C would obtain judgement for substantial amount
64
What is an interim injunction?
Order requiring a party to do or refrain from doing something. Usually made in circumstances of urgency and lasts until trial or further order
65
What are the requirements for an interim injunction?
1. Is there a serious question to be tried?
2. Would damages be an adequate remedy?
3. Where does the balance of convenience lie?
66
What is the procedure for interim injunctions?
Cross undertaking in damages
Without notice safeguards
Applications before a claim is issued
67
What are Part 36 offers?
Offers to settle
Offeror – makes valid p36 offer – potentially obtain extra benefits at trial if offer not accepted
Offeree – receives P36 offer – can face sanctions at trial if the offer is not accepted
68
How to make a valid P36 offer?
In writing
21 days D liable for C's costs if accepted
Clearly pursuant to P36
Offer to pay single sum of money
Within 14 days of acceptance
69
Who pays costs for P36 offer?
If accepted before expiry, then D pays costs
If after expiry, then court will determine. C can have costs up to expiry of period.
70
What is the general rule regarding costs?
Losing party pays winning party's costs
71
What is the definition of disclosure?
Stating that a document exists or has existed
72
What is inspection?
The party to whom a doc has been disclosed, looking at the document.
Where a party has a right to inspect a document, they also have a right to request a copy of that document.
73
What are the ways in which you may obtain a disclosure order?
Unless court orders otherwise, it will be a standard disclosure order
Small claims track
Fast track
Intermediate track
Multi track
74
How do these tracks work? What is the process in terms of disclosure orders?
Small claims track – disclosure order included in directions given on allocation, usually disclosure to be 14 days before hearing
Fast track – disclosure order included in directions given on allocation, court will make order for disclosure having regard to overriding objective and limiting disclosure to what is necessary
Intermediate track – disclosure order included in directions given on allocation, or listed for CMC, court will make order for disclosure having regard to overriding objective and limiting disclosure to what is necessary
Multi track – disclosure report filed and served no less than 14 days before CMC (NOT PI CLAIMS), conversation between parties no less than 7 days before CMC, Court makes disclosure order: there is no 'usual' order
75
What if a document becomes available after the date of disclosure, or after disclosure has been completed?
It must still be disclosed
76
What do you need to consider for standard disclosure?
Is it a document? (CPR 31.4)
Is/was it in the party's control? (CPR 31.8)
Does it fall within CPR 31.6?
77
What is the test in CPR 31.6?
Standard disclosure requires a party to disclose only:
Documents on which he relies; and
The documents which
Adversely affect his own case
Adversely affect another party's case; or
Support another party's case; and
The documents which he is required to disclose by a relevant practice direction
78
How does a party know whether it has any documents that meet this test?
Carry out a reasonable search for the documents. What is reasonable will depend upon the number of documents involved, costs involved in the search and the nature of the proceedings
List the documents in a court form which is then served on the other parties by the deadline stated by the Court
79
When does a party NOT have a right to inspect a disclosed document?
No longer in control
Disproportionate
Right/duty to withhold inspection (e.g. privilege)
80
What are the 3 types of privilege?
Legal advice privilege – confidential communication between lawyer and client, prepared for purpose of giving/receiving legal advice. MUST be between LAWYER and client, no other profession
Litigation privilege – confidential communication passed between lawyer and his client or between one of them and a third party, where the dominant purpose is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time, reasonably in prospect
81
What are the 3 types of privilege?
1. Legal advice privilege – confidential communication between lawyer and client, prepared for purpose of giving/receiving legal advice. MUST be between LAWYER and client, no other profession.
2. Litigation privilege – confidential communication passed between lawyer and his client or between one of them and a third party, where the dominant purpose is to obtain legal advice, evidence or information for use in the conduct of litigation which was at the time, reasonably in prospect.
3. Without prejudice privilege – document whose purpose is a genuine attempt to settle a dispute.
82
What should go into a witness statement?
Everything that the witness has knowledge of and which helps the party concerned. Not opinions.
83
What is expert evidence?
Expert view/opinion on allegations such as in Medical negligence claims. Restricted to what is 'reasonably required' to resolve proceedings. Can be an expert for each party, or can also be a single joint expert.
84
Once a report is produced, what is done?
Questions to the expert, meeting of experts, oral evidence at trial. Bear in mind overriding duty to the court.
85
When must jurisdiction be considered?
Pre-action stage.
86
What are the international aspects of a dispute?
1. Do the courts of England and Wales have jurisdiction to determine the claim?
2. Which country's laws apply to determine a dispute?
3. Will it be necessary to enforce the judgement abroad and how will this be done?
87
When is jurisdiction established?
1. Presence in the jurisdiction OR
2. Agreed under contract OR
3. Permission to serve outside the jurisdiction.
THEN serve claim form.
88
When is permission needed from the court to serve a claim form?
When none of the following apply:
1. D submits or agreed jurisdiction.
2. Jurisdiction clause (CPR 6.33).
3. Hague Convention 2005.
89
How to seek permission from court to serve a claim form?
1. An application to court.
2. Serving party must establish a gateway.
Examples of gateways:
- Contract and Tort – if requirements met.
- D has domicile.
- Claim for injunction.
- Necessary or proper party.
- Claim must have reasonable prospects of success.
90
What is the Hague convention?
Jurisdiction cannot be challenged if it falls under the Hague convention. Relevant when there is an agreed contractual clause, and the following can be answered affirmatively:
1. Is the matter a civil or commercial one?
2. Is it an excluded matter?
3. Does the clause give jurisdiction to a contracting state?
4. Is jurisdiction given exclusively?
5. Is the agreement concluded/documented/evidenced in writing?
6. Is the agreement an asymmetric one? – may not always apply in Hague Convention.
91
How do you dispute the Court's jurisdiction?
D must file Acknowledgement of Service, and tick the box on the acknowledgement to indicate that the defendant intends to contest jurisdiction. D must apply within 14 days after filing AoS, disputing the jurisdiction. Must be supported by evidence. If a defence is filed or D takes part in the claim in any other way, it may amount to submission, and then you can't dispute jurisdiction after that.
92
In terms of enforcement, how do you investigate your opponent's financial position?
Enquiry agents, company searches, registers.
93
What are the types of enforcement?
1. Taking control of goods – enforcement officer seizes goods, sells them, uses proceeds to satisfy debt. Cannot seize if someone other than debtor owns or has an interest in it. Basic domestic items/tools of trade are exempt.
2. Attachment of earnings order – court orders judgement debtor's employer to make deduction from the debtor's earnings.
3. Charging order – take over land, can apply for order for sale.
4. Third party debt orders – third party must pay creditor. Used to obtain money in a bank account.
5. Insolvency procedures – bankruptcy petition, winding up order in relation to a company.
94
What is the position on appeals?
No automatic right to appeal and general rule is that permission will be required in order to proceed.
95
What are the grounds for an appeal?
1. Appeal may have a real prospect of success.
2. There is some other compelling reason why the appeal should be heard.
96
How do you seek permission for an appeal?
Apply to lower court at the time the decision to be appealed is made. Done orally. OR, make application to the appeal court later, done in writing. Within 21 days of the date of the lower court's decision.
97
What can be the outcome of an appeal?
1. Judgement was wrong.
2. Judgement was right.
3. Judgement was unjust.
No new witnesses or evidence is permitted at appeals.
98
Which court to appeal to?
Appeals go up the court hierarchy – County Court District Judge, County Court Circuit Judge, High Court Judge, Court of Appeal, Supreme Court.
