dispute rtesolution Flashcards
limitation period for breach of contract
The basic limitation period for breach of contract claims is six years from the date of breach.
A woman was injured when her car was struck by another car at an intersection. The extent of the woman’s injuries were uncertain and so she delayed filing a claim. The limitation period is to expire on 30 April. On 15 April, the woman’s solicitors issue court proceedings to stop the limitation clock running.
Which of the following best describes the deadline for service of the claim form upon the defendant?
Responses
A claimant must serve an issued claim form within four months of the date of issue, failing which the court will not permit the claimant to continue with the claim. It will be extremely difficult to persuade the court to allow the claim to continue if the claimant fails to serve in time.
statement of truth
The statement of truth must be completed on the claim form and signed by the client.
What is the likely impact of the failure to respond to the request to engage in ADR if proceedings become necessary?
The court is likely to penalise the claimant in costs. Case law has established that it is unacceptable to ignore a request for alternative dispute resolution (‘ADR’). Any party that believes ADR is inappropriate must respond, clearly setting out their reasons. The court has discretion to penalise the party in respect of the legal costs they can recover, regardless of the outcome of the case.
interim payment
The solicitor should make an interim payment application. An application for an interim payment is an application for the court to order some payment before the court has given a final determination on the claim. Interim payments are discretionary. They often are granted when the defendant has admitted liability. Whilst the claimant need not show need, it is a factor a court will consider. The amount must be a reasonable proportion of the likely amount of the final judgment. Summary judgment is appropriate when the applicant shows that the other side has no reasonable prospect of success and there is no other compelling reason why the case should proceed.
unless order
The claimant should make an application for an unless order with respect to the expert’s report. If a party fails to comply with the directions order, the court usually will not impose a sanction unless the non-defaulting party makes an application for an unless order specifying the sanctions that may be imposed and the defaulting party fails to comply with the unless order. In that case, the court may strike out a defence or claim, impose costs, debar the defaulting party from relying on the evidence involved, and so on.
unless order
The claimant should make an application for an unless order with respect to the expert’s report. If a party fails to comply with the directions order, the court usually will not impose a sanction unless the non-defaulting party makes an application for an unless order specifying the sanctions that may be imposed and the defaulting party fails to comply with the unless order. In that case, the court may strike out a defence or claim, impose costs, debar the defaulting party from relying on the evidence involved, and so on.
Directions Questionnaire?
A Directions Questionnaire is a document that helps the court manage the case by requiring the parties to address certain issues, such as whether experts will be required. Other issues that must be addressed include whether the parties complied with pre-action protocols, track allocation and details of applications and directions already made as to disclosure and inspection, the names of witnesses and issues they will address, the estimated length of the trial, and the details of anticipated costs.
A factory worker was injured when a cutting machine sliced her hand. She made a claim against the manufacturer of the machine and included an application requesting an interim payment with a bundle of supporting evidence. The deemed date of service was 4 January. The court will hear the application on Tuesday, 24 January.
Whilst the defendant has admitted liability for breach of duty, they believe that the claimant was partially responsible for her own injuries in that she failed to wear suitable protective gloves. Had she done so, the extent of her injuries may have been minimal. Therefore, the defendant is not keen on making a payment at this stage of the proceedings.
What is the latest date on which the defendant may file its written evidence?
The defendant must ensure that they serve evidence in support of their objection at least seven days before the hearing. If not, the court is unlikely to consider it. As the period is seven days from the hearing, the choices indicating that time is measured from the date of service (that is, (A) and (B)) are incorrect. It should be noted the 14-day timescale in (C) is the minimum time before the hearing for claimant to serve evidence. And the three-day timescale in (E) is the minimum time before trial on which the claimant can serve a reply to the defendant’s evidence.
A cyclist suffers multiple injuries following a collision with a car. The solicitors for the cyclist write to the driver’s insurers indicating that they are intending to bring a claim. They subsequently send a letter of claim to the driver, with a copy to his insurers, stating that they will commence formal legal proceedings unless they receive a formal admission of liability within 21 days.
The driver’s insurers respond 14 days later. Their response states that they are investigating the claim and will come back to the cyclist’s solicitors as soon as possible with confirmation of whether liability can be admitted.
How long do the insurers have to investigate the claim?
hree months. Under the Personal Injury Protocol, a claimant must send a letter of claim to the defendant, giving the defendant 21 days to respond. If the defendant responds to the letter within 21 days, the claimant must then give the defendant three months to investigate the claim. (If the defendant does not respond within 21 days, the claimant may then start proceedings.
determining the court
The High Court is the most appropriate court to hear cases involving more than £100,000 and complex issues. In determining value, counterclaims and contributory negligence are ignored, so the claim here for £120,000 and likely to require very specific expert evidence should be started in High Court.
On 27 September 2020, a boy suffered severe injuries in an accident in a school playground. He was playing on a new set of swings when the supporting rope became loose, causing the boy to fly through the air and suffer a concussion and broken hip. The boy needed a number of operations on his hip and is likely to experience significant mobility issues in the future. The boy was born 3 March 2012.
What is the latest date on which the boy may bring a claim for his injuries?
Responses
The limitation expires on 3 March 2033 as this is three years after the boy’s 18th birthday. If the injured party is a minor, time does not start to run on a claim until the minor’s 18th birthday. As the claim here involves personal injury, the relevant limitation period is three years from this point
A client wishes to commence proceedings against their former solicitors for negligent advice in respect of various trust funds of which they are a beneficiary. Their solicitors estimate the value of the claim at £250,000. The client is based in Manchester and is severely disabled, and her former solicitors are based in London.
In which court should the client’s solicitors issue the claim?
The claim should be issued in the High Court of Justice, Manchester District Registry, Chancery Division. Generally, claims exceeding £100,000 are issued in the High Court. The High Court has district registries in most large towns and cities, and the claimant should indicate on their claim form the district out of which they wish the claim to issue. As the client is based in Manchester and is severely disabled, Manchester would be the best registry. And the Chancery Division of the High Court is the division that handles equity and trusts.
valuing damages
When valuing a damages claim (that is, a claim for an unspecified amount) for purposes of the claim form, the claimant should disregard interest, costs, contributory negligence, and counterclaims. Therefore, the only item among the choices that should be considered is the woman’s damages estimate.
searching documents
Discussion - Incorrect
(A) The solicitor should advise the developer that it must search for all documents relevant to the claim as the developer will have to sign a disclosure statement certifying that they carried out a reasonable search. Under standard disclosure, each party is required to make a disclosure statement certifying that they understand the duty to give disclosure and that they carried out that duty to the best of their knowledge. In the statement, they must declare that they believe the search they made was reasonable (proportional) and explain why a particular search may not have been carried out. The document is signed by the party, who is subject to contempt proceedings if they make a false statement.
