Dispute Resolution - FLK1 Flashcards
1
Q
What is Mediation?
A
Neutral third party is involved who discusses the dispute and possible solutions with the parties with the aim of reaching a mutually agreed solution.
The outcome is a voluntary agreement which, if not met, must be enforces as a breach of contract through the courts.
2
Q
What is Arbitration?
A
Dispute is decided by a single arbitrator or a panel who are usually experts chosen from a particular field or professional body.
The decision is binding on the parties and enforceable in the courts.
3
Q
What are the five stages to civil litigation?
A
- Pre-commencement
- Issuing of proceedings
- Interim matters
- Trial
- Appeal and/or enforcement
4
Q
Which are the two main civil courts and what do they deal with?
A
The main civil courts are the County Court and the High Court.
They deal with disputes that arise between individuals and companies, such as breach of contract or negligence.
5
Q
What is the value of a small claims track?
A
up to 10,000
6
Q
What is the value of a fast track claim?
A
over 10,000 and up to 25,000
7
Q
What is the value of a multi-track claim?
A
over 25,000
8
Q
What is the effect of limitation?
A
Claimant may still commence claim but defendant will have a complete defence
9
Q
What are the limitation periods?
A
Contract: the date of breach of contract - 6 years
Tort: the date the damage occurs - 6 years
Except for PI matters: date of the cause of action or the date of knowledge of PI - 3 years
Children: does not start to run until their 18th birthday
10
Q
What are the steps in the PDPAC?
A
- C send letters before claim
- D responds to claim and indicate if counterclaim
- C replies and considers ADR
- Stocktake - consider other options
- Sanctions for non-compliance
11
Q
When the HC doesn’t apply how does common law apply? - Serving a claim form within England and Wales
A
Courts can hear any proceedings if the claim form was served on the defendant whole they were present in these countries.
Rationale: the mere presence of the defendant indicates their acceptance of the nation’s jurisdiction.
Defendant can object on the grounds that these courts are not the most appropriate for resolving the dispute.
12
Q
When the HC doesn’t apply how does common law apply? - Serving a claim form outside England and Wales
A
Court’s permission is required to serve outside jurisdiction.
Granted if:
1. Contract was made or breached in E&W, is governed by the law, or contains and agreements conferring jurisdiction on the English courts.
- Tort claim, where the act causing the damage was committed in E&W, or the loss was sustained there.
13
Q
What does the 2005 Hague Convention require?
A
Requires the court designated in an exclusive jurisdiction agreement to hear the case and for any proceedings in another contracting State to be dismissed.
14
Q
What is an exclusive jurisdiction agreement?
A
Where a clause limits a dispute to the courts of one jurisdiction.
Therefore, the Hague convention is limited as it only covers situations where an exclusive jurisdiction clause exists.
15
Q
Which civil court to commence proceedings at?
A
Claim is 100k or less –> must be County court
Claim is more than 100k –> may be High Court
Except PI claims: more than 50k for HC
16
Q
What are the methods of service for a claim form?
A
- Personal service
- First class post or document exchange
- Leaving claim at specified place
- Fax, electronic communication
- Any other method authorised by the court
17
Q
Where to serve a claim form? - service at specific place
A
Usual or last known residence or place of business
18
Q
When to serve a claim form?
A
After issuing a claim form, the claimant has four calendar months in which to serve it on the defendant.
19
Q
What is the deemed service of the claim form?
A
The claim form is deemed to have been served on the second business day after the step required has occurred.
20
Q
What is the deemed service of other documents?
A
Instantaneous methods (e.g. email):
- If served before 4.30 pm on a business day, on that day
- If not, on the next business day
Non-instantaneous methods (e.g. post):
- The second day after it was posted provided that day is a business day
- If not, the next business day
21
Q
How is the service of the particulars of claim done?
A
If not included on the claim for itself, then:
- either at the same time as the claim for; or
- within 14 days after service of the claim form (no later than four months)
22
Q
What are the time limits when serving a claim form outside of jurisdiction?
A
Service must be within 6 months of issuing
23
Q
Adding, substituting or removing a party
Who can make an application?
A
An existing party or a person who wants to become a party.
To be added or substituted as a claimant there must be consent in writing filed at court.
24
Q
Adding, substituting or removing a party
Is permisison required?
A
Yes, unless claim form has not been served
25
Adding, substituting or removing a party
What are the grounds?
Application made within limitation period:
It is desirable:
- to add a new party to resolve the issue
- to remove a party
- to substitute a party where the existing party's interest or liability has passed to them.
Application made outside limitation period:
A party may only be added or substituted if the limitation period was current when proceedings were started, and:
- the original party was named by mistake
- the original party died/ has a bankruptcy order/ or liability has been passed.
- the claim cannot properly be carried on without the new party
26
After receiving court proceedings, how many days does a defendant have to respond?
Within 14 days of service of the particulars of claim by filing and admission, an acknowledgment of service or a defence (and a counterclaim if one will be served)
27
What does filing an acknowledgment of service give the defendant?
An extra 14 days to file their defence, granting them a total of 28 days from the date of service of the particulars of claim.
28
What are the rules for a defendant admitting a claim?
Defendant may admit whole or part of the claim and either pay the sum or request time to do so. If the claimant does not accept, the case will continue as a defended claim.
29
What are the rules for admitting an unspecified claim?
The amount of damages payable must be determined by the court at a disposal hearing.
30
What happens if a full defence if filed with the court?
The litigation will proceed as a contested matter.
31
What happens if a defendant does not file an acknowledgment of service or a defence within the required time limits?
The claimant may enter judgment in default.
On a specified claim, this will be for a final sum of money and the matter will proceed immediately to enforcement.
On an unspecified claim, the judgment is for damages to be assessed by the court at a disposal hearing.
32
Can default judgments be set aside?
Yes, they may be set aside either on mandatory grounds; or on discretionary grounds provided the defendant applies promptly.
33
Can a claimant discontinue the proceedings?
Yes, usually without needing the permission of the court, but they will be responsible for the costs of doing so.
34
How is a settlement reached before and after proceedings are issued?
May be recorded either by letter or in a formal agreement.
Once proceedings have commenced, the terms of a settlement must be recorded in a formal court order.
If the parties require confidentiality or the imposition of terms beyond the powers of the court, in a Tomlin order.
35
Can a defendant dispute the court's jurisdiction ?
Yes, a defendant can dispute the court's jurisdiction to hear the claim and the issue will then be determined by the court.
36
Time limit for file an acknowledgment of service or a full defence
14 days
37
Time limit to file a defence when an acknowledgment of service is filed within 14 days
Deadline to file the defence is extended to 28 days from service of the particulars of claim.
38
What are the formalities for a consent order?
A. the order agreed by the parties must be drawn up i the terms agreed
B. It must be expressed as being 'By Consent'
C. signed by the legal representative acting for each of the parties to whom the order relates.
39
What does a Tomlin order do?
Stays the claim on agreed terms that are set out either in a schedule to the order or separately.
40
What's the purpose of statements of case?
To define for the court the issues that are in dispute and, as a consequence, to limit the matters that must be proven by the respective parties.
41
What does the term 'statements of case' encompass?
Claim forms, particulars of claim, defences, counterclaims, replies, and responses to requests for further information, but not evidential information such as witness statements or expert reports.
42
Which document begins legal proceedings?
Claim form, can bee served alone, or accompanied by separate particulars of claim.
43
Time limit for defence to counterclaim
Defence to a counterclaim must be filed by the claimant within 14 days (unless an extension of up to 28 days has been agreed wit the defendant).
If they fail to do so, the defendant may enter judgment in default on the counterclaim.
44
What is a request for further information?
If either party required clarification or more information on any matter in dispute, they can make a request for further information, and the other party must respond.
45
What is a statement of truth?
All statements of case must be verified by a statement of truth
46
Can a statement of case be amended?
Yes but only with the agreement of the other party or the permission of the course after service has been effected.
47
How should a claimant make a claim for interest?
Set out the basis of its entitlement, but doesn't need to calculate the amount.
48
What are interim applications?
Made between the issue of proceedings and the trial.
49
What is the purpose of interim applications?
To obtain directions from the court to push the matters forwards, to obtain clarification of any issues or to seek a particular remedy.
50
What are the general rules for interim applications?
Part 23 contains the general rule.
Interim applications may be made either with or without notice, and which may be disposed of in the absence of a hearing.
Parties should attempt to reach agreement before submitting an interim application.
51
How to apply for an interim application?
Either party may apply using:
- Form N244 - the Notice of Application.
- Evidence - witness statement
- Draft order
52
How to apply for summary judgment?
Either party may apply under part 24
53
When is summary judgment available?
Where the court concludes that there is no real prospect of either the claimant or the defendant succeeding on the claim or in their defence, and there is no other compelling reason why the case should proceed to trial.
54
What is the advantage of an application for summary judgment?
If won, the matter is brought to an early conclusion without the additional cost in time and expense of proceeding further.
55
What are interim remedies?
Under Part 25, there are interim payments and interim injunctions.
56
What are interim injunctions?
May be granted at any time up to the trial and are reserved for urgent matters or those where the court believes it is in the interests of justice.
57
What are interim payments?
Orders for payments on account of a debt owed or damages sought that the court is expected to order the defendant to pay.
Before making the order, liability must have been admitted or determined, or the court is satisfied the claimant will win at trial and obtain a substantial amount in damages.
58
What is the timing for interim payments?
Cannot be sought until after time for acknowledging service has expired.
Must be served at least 14 days before the hearing date.
59
What are the 3 procedures for making an interim application and the time limits?
Standard - 3 clear days, ASAP, ASAP
Extended (summary judgments and interim payments) -
14, 7 ,3
Without notice (speed, secrecy, necessity) - full and frank disclosure
60
What is the overriding objective in case managment?
Enables the court to deal with cases justly and at proportionate cost.
The court is required to further the overriding objective by actively managing cases.
61
What is the small claims track for?
Most informal for claims up to 10,000
62
What is the fast track for?
Standard route for cases of over 10,000
63
What is the multi-track for?
Reserved for higher value and more complex cases over 25,000
64
What is the directions questionnaire for?
All parties complete this so the judge has the relevant information to confirm or change the track, as appropriate.
65
What is the procedure at the track allocation stage?
Court will give directions and cover issues such as disclosure, witnesses of fact, expert evidence and the steps required to take the matter to trial.
66
What is the case management conference held in the multi-track?
At the case management conference, the court will also consider the questions of costs.
The parties are required to file costs budgets and a budget discussion report.
The court may take control of costs by imposing a costs management order.
67
What are the courts sanctions to enforce compliance with he overriding objective?
- striking out statements of case
- imposing penalty costs and interest orders
- make unless orderds
68
Can parties apply for relief from court sanctions?
Yes, to overturn the penalty. This may not be granted.
69
What is standard disclosure?
The usual order on the fast track.
Requires parties to disclose all documents that record information upon which they intend to rely, which are adverse to either party's case or which support the opponent's case.
70
How is disclosure served?
By serving a list of documents (Form N265).
71
What is the duty of disclosure?
An ongoing duty that continue throughout proceedings.
72
What are proceedings for contempt of court?
May be brought against anyone who makes a false disclosure statement without an honest belief in its truth.
73
Can documents be withheld from inspection?
Yes, but they must still be disclosed.
74
What is legal advice privilege?
Communications between a client and their lawyer prepared for the dominant purpose of giving or receiving legal advice.
75
What is litigation privilege?
Communications between a client, their lawyer, and a third party, existing after litigation was commenced, and were made for the dominant purpose of obtaining advice or for using as evidence in the litigation.
76
What is without prejudice privilege?
Information with the purpose of a genuine attempt to settle a dispute.
77
What is the time limit for inspection?
Documents may be inspected within seven days of disclosure, either personally or by requesting copies.
78
What is specific disclosure?
A party who is dissatisfied with the disclosure provided by the opponent may apply to the court for an order for specific disclosure.
79
What is pre-action and non-party disclosure?
Disclosure may be ordered prior to proceedings being issued or against a non-party, if appropriate.
80
What is a witness statement?
A witness statement is a written statement containing the evidence of the witness would be allowed to give orally at trial.
It must comply with the formalities required by CPR Part 32 and be verified by a statement of truth.
81
What is the function of a witness statement?
To set out in writing the person's evidence-in-chief so it must be expressed, so far as possible, in the witness's own words.
The statement should address the disputed issues in an orderly manner and this will usually be chronological.
82
What is the rule of admissibility?
Only admissible evidence may be included.
Irrelevant facts to the issues in dispute are inadmissible, as is opinion evidence unless this is based on facts personally perceived by the witness.
83
What are the rules for hearsay evidence?
Starting point: evidence is admissible
Only becomes inadmissible if it contains irrelevant material or opinion evidence that a witness of fact cannot give.
In this way, it is no different from 'ordinary' evidence.
However, it is second best evidence and its weight will be carefully assessed by the court.
What makes it distinct is the notice requirements and the party intending to rely on the hearsay must comply with these.
84
What is expert opinion/evidence?
Their evidence will be admissible if it is relevant and within the expertise of the expert, in the correct format and the court has given permission for its use.
85
Who is an expert's duty to?
An expert's primary duty is to the court and not to the party that instructed or is paying them.
86
What is a without prejudice discussion?
The court may require the experts to answer questions on their reports, take part in a without prejudice discussion and submit a written joint statement.
Experts can be directed by the court to give evidence orally at the trial or the court may decide to rely upon the written reports.
87
What does preparation for trial include?
Ensuring the attendance of witnesses, drafting a case summary and preparing trial bundles.
88
How does the court ensure that a case is ready to be listed for trial?
With the assistance of pre-trial checklists and if necessary a pre-trial review.
89
What are the order of events at trial?
- Opening speech by claimant's advocate
- The presentation of the claimant's case
- Follow by the defendant's case (witnesses and expert evidence
- Closing speeches by both
90
What is concluded at trial?
The judgment will determine the contested issues including liability, quantum, interest, and costs.
91
What is the right of appeal in civil cases?
No automatic right of appeal - permission is always required.
Permission can be obtained from the court that made the decision, or the court that will hear the appeal.
92
What are the grounds for permission to appeal?
Appeal must have a real prospect of success or for there be some other compelling reason why it should be heard.
93
When may an appeal be heard?
When the decision of the lower court was wrong or unjust because of a serious irregularity.
94
What does a witness statement stand as?
The witness's evidence-in-chief
95
How many days does a claimant have to appeal?
21 days - County or High Court decision
28 days - from the CoA to Supreme Court
96
What are the destination of appeals, when the decision if made by one judge who is the appeal made to?
County court
- District judge --> circuit judge
High court
- District judge --> high court judge
- Circuit judge --> high court judge
- High court judge --> Court of appeal
Court of appeal
- CoA --> Supreme court
97
What is the general rule on costs?
The loser pays the winners costs
Judge has discretion to make a different order if needed
98
How is the amount of costs recoverable determined?
Unless fixed by the CPR, the judge will determine the amount.
99
How are costs assessed for interim applications and fast-track?
Summarily assessed at the end of hearings for interim applications and most fast track trials.
100
How are costs assessed in other cases (multi-track)?
Detailed assessment of costs involving fully particularised bills of costs, formal objections and responses and determination by a judge, which may be at an oral hearing.
101
What are the two bases of assessment in costs?
Standard basis:
- Most commonly used and will only allow costs that are proportionate to the matter. Any doubts are resolved in favour of the paying party.
Indemnity basis:
- There is no reference to proportionality and any doubts are resolved in favour of the receiving party.
Both require costs to be reasonably incurred and reasonable in amount.
102
Can a non-party be liable for costs?
Yes in exceptional circumstances where the court is satisfied that the non-party was the real party interested in the litigation or that they were responsible for bringing the proceedings.
103
What are the time limits for a costs summary assessment?
Parties must file and serve a statement of costs no less than 2 days before a fast track trial and at least 24 hours before an interim hearing.
104
What are the time limits for a costs detailed assessment?
Paying party has 21 days to serve points of dispute.
Receiving party has 21 days to file a reply, and must file a request for an assessment hearing within three months of the expire of the period for commencing detailed assessment proceedings.
If either party is unhappy with the judge's decision they may request an oral hearing within 21 days.
105
What is qualified one-way costs shifting?
In personal injury cases a claimant may be protected from liability for a defendant's costs under QOCS.
If a claimant is unsuccessful the would normally pay the defendants costs.
QOCS means that the defendant will only be ale to enforce that order if permission of the court is given, and this is limited to cases where the judge finds that, on the balance of probabilities, the claim was fundamentally honest.
106
What is security for costs?
A defendant who has concerns as to whether the claimant will be unable or unwilling to satisfy a costs order against them may apply for an order for security for costs.
107
What are offers to settle?
Both parties can make offers to settle, and offers under Part 36. If the offer is accepted it must be paid by the defendant to the claimant within 14 days of acceptance.
108
What is a Part 36 offer?
An offer to settle, but has significant penalties attached if the relevant party makes the wrong decision and reject and offer that court subsequently deems to be suitable.
109
What is the time limit to responding to a Part 36 offer?
Acceptance is required within 21 days, unless a longer period is specified.
D pays money to C within 14 days
D pays C's costs up to the date of acceptance on the standard basis.
110
What is the effect of claimant equalling or beating own Part 36 offer at trial?
C is awarded damages, with possibly up to 75k additonal.
Up to day 21, interest on the damages from the date of loss, and costs on the standard basis from the start of the relevant period.
From day 22 to judgment, interest on the damages, costs on an indemnity basis, and interest on the costs.
111
What is the effect of claimant failing to beat defendant's Part 36 offer at trial?
Split costs order will be made
C is awarded damages, interest from date of loss.
Up to day 21, D pays C's costs on the standard basis from the start of the relevant period.
From day 22 to judgment, C pays D's costs on the standard basis and interest on those costs.
112
What is the effect of claimant winning but being awarded a lesser sum or of they lose the claim?
Part 36 has no effect.
113
In enforcement of money judgments how is the judgment debtor's financial circumstances investigated?
1. Instruct and enquiry agent; and
2. Apply to the court for an order to obtain information from the debtor.
114
What are the four most common methods of enforcement?
1. Taking control of goods
- seizure and sale of debtor's goods
- some may be exempt from seizure
2. Charging order
- a charge on the debtor's land for securities
- interest in land
3. Third party debt order
- An order requiring a third party who owes money to the debtor to pay it directly to the creditor
- against a bank account
4. Attachment of earnings order
- An order requiring the debtor's employer to make deductions from their earnings and pay them to the creditor.
- if employed
115
What is the procedure for effecting valid enforcement in another jurisdiction?
Procedure for enforcing an English judgment in a foreign country depends on where enforcement is required.
Arrangements are in place to assist but, if not, the law of the State where the judgment is to be enforced will apply.
116
What is the time limit for filing a trial bundle?
The claimant must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial.
