Disputes - Pre-trial Flashcards
(36 cards)
What is the overriding objective?
Resolve the matter justly and at proportionate costs
How do you demonstrate meeting the Overriding O in pre-action correspondence?
Offer ADR. ADR fulfils the O.O as frees up court and saves costs. If a party fails to offer/engage in ADR they may face cost sanctions down the line. ADR Is also in clients best interests so principle 7 or SRA code applies
What kind of sanctions are used if a party has refused ADR?
Winner in court = costs not paid by in full or at all other party, reduced interest on damages, made to pay other sides costs.
Loser in court= Other side awarded costs on indemnity basis, interest applied to damages
When should ADR be considered?
At every stage before trial, pre-action, allocation, CMC, disclosure. Case can be paused to allow for ADR
What is arbitration and how is it instigated? 2 pros and 2 cons
Dispute decided on by one or more arbitrators, usually experts in area of dispute. Contract can mandate arbitration Pros: Confidential, flexible - parties can chose arbitrator, how it runs etc as no legal framework, outcome is enforceable under international law, decisions can be made on commercial basis not just legal,
Cons - expensive and time-consuming, parties must agree to it, no appeals, does not create precedents so unpredictable, harder to join 3rd parties
What is mediation? 3 pros 3 cons
Neutral third party (mediator) appointed to help resolve dispute. They do not themselves make the decision but guide parties through, discuss with them together and separately, assist negotiation.
PROS: Confidentiality, speed/cost (Cheaper than Arb), control, commercial considerations allowed, settlement options are not limited to those available to court, helps break deadlock and repair damaged relationships.
CONS: Mediator not always an expert so may not work for complex disputes, no guaranteed outcome, requires co-operation, no formal rules re disclosure etc to test the parties case
Yes. For civil disputes the signed agreement serves as a legally binding contract.
If court proceedings have already commenced, an order of the court which sets out what was agreed in mediation can be made by agreement of those involved (this is known as a ‘consent order’ or a ‘Tomlin order’).
Where is a PI/damages/negligence case under 50K allocated? oVer 50K
Under 50K must be county court
Over 50k may issue in High court if complex, high value, public importance
Where is a damages (non PI) claim under 100k allocated? Over 100K?
Under 100k must be country court
Over 100k may issue HC if complex/expensive/public importance
What is the deadline for serving the claim form and Particulars?
Within 4 months for UK or 6 for international. PoC at same time or within 14 days
When must the ack of service be served?
And the defence?
AoS -14 days after reciept of PoC
Defence - 14 days after receipt of PoC unless AoS served, then have 28 days. Can also serve counter claim at same time
When is the reply to defence or defence of counter claim due?
Filed with the directions questionnaire for reply, 14 days for defence of CC
Case of up to 10k goes to?
Small claims in county court using standard directions
10-25k goes to….
Fast track with standard directions
25-100k claims go…
Intermediate track, can be standard directions or to a CMC
claims over 100K?
Multi- track with directions or a CMC
How can litigation be funded externally (not via fee arrangement) (6 answers)
1) Private funding by client
2) Legal Aid although very limited availability for civil cases
3) Union if employee case
4) BTE insurance (before the event) client may have this cover in corporate or personal insurance
5) ATE insurance taken out to cover adverse costs if client is unsuccessful. Premium is not recoverable from other party.
6) Litigation funding - usually for large commercial cases where funder hopes to make a profit or class action, don’t usually cover opponent costs if case fails
What is a CFA?
Conditional fee arrangements (CFA) available to Claimants and defendants. Client only pays fees if they are successful.
CFA with success fee - client is usually not asked for any costs until case is concluded and only pays if they win
Discounted CFA - Client pays disbursements and fees at discounted rate throughout. If they win they pay top-up to full fees.
Must be in writing and explained in full, clients cannot recover success fee from other side and fee must be within permitted limits
What is a DBA?
Damages based arrangement. Client pays over a % of the damages to the solicitor if they win the case. Capped at 25% for PI, 35% for emp tribunal and 50% for others. VAT and counsel costs included in cap but disbursements are not.
Only available to defendants if they are making a counter claim, must be in writing
what determines jurisdiction for contract?
- Any clause in the contract
Was agreement concluded or entered into outside E &Wales
Does either party reside or have its business outside E&W
Common law rules (E&W will have jurisdiction if claim can be served within E&W or outside with court permission) and Hague convention also apply
What determines jurisdiction for tort?
Was claimant injured outside E&W?
DO either party conduct biz or reside outside E&W?
Is either party corp body registered outside E&W and if so does it have any biz prem in E&W?
Common law and hague convention also apply
What is the limitation period for A)contract?
B)PI?
C)Tort
D)CRA?
E) Fatal injuries act
A) years from breach
B) 3 years from course of action or knowledge of the injury if later
C)6 years from action
D) 3 years from date of damage or awareness of damage but no more than 10 years from date of supply
E) 3 years from date of death
What rules apply to limitation periods if the claimant is a child?
Not of sound mind?
Fraud case?
Starts from 18th birthday
Starts from when they regain capacity
Starts from when claimant discovers or could have reasonably discovered the fraud
What is the claims portal?
Online DR system for resolution of employers liability, public liability and PI claims upto 25K before proceedings are issued. Meant to speed up proceedings if case is straightforward and liability admitted.
Process: Claims search and notification form submitted, if liability denied claim exits portal.
Claimant submits med report and settlement pack, insurer has 15 days to accept or counter offer. If settled a fixed fee for costs is paid.
If liability is agreed but quantum cannot be resolved court proceedings pack is sent by claimant and the court makes an assessment (oral or written) for a fixed fee.
