DR Flashcards
What is the procedure for mediation?
Parties agree independent 3rd Party to act as a ‘go between’
Parties send mediator written statements. (Then discussed without prejudice)
Mediator identifies real areas of disagreement and most important points to parties.
Often meet in same building for efficiently. In many cases, the mediator and the parties will meet in the same building.
What is the procedure for arbitration?
The dispute is referred to an independent arbitrator. The person, professional or trade body may be specified in the original contract; alternatively, the parties may choose their own arbitrator with the relevant experience. An arbitration process will be adopted but this will be less formal than the court procedure.
Once the third party has reached their decision, this is binding on both parties to the dispute.
Is the outcome if arbitration enforceable?
Once a decision has been reached, the winning party to an arbitration can apply to the High Court under s 66 of the Arbitration Act 1996 for permission to enforce the arbitration award as if it were a court judgment.
What is the aim of the CPR?
Provide a more user friendly system for resolving disputes.
5 Stages of Civil Claim
1: Pre Commencement
Practice directions, pre action procedures. Objectives, costs, send letter before claim.
2: Commencing Claim.
Issue and serve CF and particulars. Wait for defence / counterclaims. Allocated to a track.
3: Interim Matters
Disclosure, interim applications (summary judgment, payments, Part 18 requests etc)
Directions given to parties. CMC, timetables given.
4: Trial
Hear evidence and decide on liability, quantum and costs.
5: Post Trial
Appeals if parties are unhappy with outcome.
Application to court to enforce judgment if not complied with.
What are the consequences if a party misses a limitation period?
If a party has missed the limitation period, the defendant will have a technical defence to the claim. This means that, if the court agrees the claim is statute barred, the claimant will not succeed in the litigation
How to check if the defendant is worth suing?
a) a search at Companies House to ascertain information about the financial position of a company;
b) a bankruptcy search of an individual;
c) instructing an inquiry agent (although the costs of this must be considered); and
d) the use of various internet search engines to see if there is any relevant information there.
Define an unspecified claim
If the court will have to conduct an investigation to determine the amount of money payable, the claim is an unspecified one even if the claimant puts forward some figures. Thus, damages claims are usually unspecified.
e.g. Loss of profits where this is not certain
What is the Practice Direction on Pre- Action Conduct and Protocols (PDPAC)?
if no relevant protocol exists, there is a Practice Direction on Pre- Action Conduct and Protocols (PDPAC), which contains general guidance to be followed in such cases. Many of the provisions mirror those of the protocols so that, effectively, all civil cases are dealt with in a similar way.
The PDPAC and the protocols are important elements of civil litigation, and solicitors must ensure they understand the content and are able to apply the provisions effectively.
Core Steps of PDPAC
- Letter Before Claim
- Response to LBC
- Parties consider ADR
- Stocktake
- Sanctions for non compliance
Pre Action Protocol - Professional Negligence
- notify professional of intention to claim, brief outline of grievance, general indication of financials if possible (preliminary notice)
- Professional responds in 21 days (and notifies insurers)
- Letter of claim (from claimant). Full details of issues & attach docs.
- Defendant acknowledges receipt in 21 days.
- Letter of response - in 3 months. admitting / denying allegations and reasons.
- Letter of settlement (if D wants to settle)
- Negotiation or C begins court proceedings.
- Stocktake
County Court Proceedings
County Court Business Centres x2: issue most civil claims
a) All money-only claims made on paper (specified or unspecified) = Civil National Business Centre in Northampton
If a hearing is required, usually in contested cases, the matter will be transferred to the County Court hearing centre local to the defendant.
b) The Civil National Business Centre at Northampton deals with online claims for specified sums of money (debt claims) for amounts of up to £100,000. These are made via the website Money Claim Online (MCOL), which allows individuals, businesses and solicitors to issue proceedings, check the status of the claim, request judgment and enforce it over the internet.
This court also provides a service for bulk users, such as utility providers and credit card companies, that file large volumes of claims for money.
c) For all other County Court claims, the claimant can usually issue proceedings in any of the County Court hearing centres situated throughout England and Wales. In such circumstances most claimants will choose to start proceedings in the court closest to their home or business.
How to issue proceedings
Send docs to court for claim to be issued:
- Claim Form (N1)
- Particulars of claim
- Docs required by CPR (copy of contract)
Claim issued by court = proceedings started
On what grounds can can party be added, substituted or removed from a claim form if the application was made within the limitation period?
It is desirable:
a) to add a new party to resolve matters in dispute; or
b) to remove a party; or
c) to substitute a party where the existing party’s interest or liability has passed to them.
On what grounds can can party be added, substituted or removed from a claim form if the application was made outside the limitation period?
A party may only be added or substituted if the limitation period was current when proceedings were started AND
a) the original party was named by mistake; or
b) the original party has died/is subject to a bankruptcy order and their interest or liability has passed to the new party; or
c) the claim cannot properly be carried on without the new party.
How to serve a claim form?
Served within 4 months of issue
Sent or delivered to defendant
Served on solicitors if they have been nominated to receive it (in writing). Once nominated, all docs must be served on them
When is a claim form ‘served’?
Second business day after ‘service’ takes place
Deemed service of documents (not CF)
Personal Service, email, delivery, fax: if before 4.30pm on business day, on that day. If not, on the next business day.
DX & 1st Class Post: if on a business day, the second day after action. If not on business day, the next business day.
What are the deadlines for service if a claim for is to be served out of jurisdiction of England and Wales?
Within 6 months of issue.
Scotland & NI = no permission required
Anywhere else = court permission required (unless contract contains english jurisdiction clause)
What is the procedure if a defendant makes an admission of an entire specified claim?
Provide details of income and expenditure.
Make an offer to pay (full or installments)
Claimant makes request for judgment when they receive this.
What is the procedure if a defendant makes an admission of part of a specified claim?
Claimant has 14 days to consider offer
Claimant options:
- Accept offer in full satisfaction of claim, request judgment from court
- Accept in partial satisfaction. Debate payment terms (court decides)
- reject entire offer. proceed with claim
Can the deadline for filing the defence be extended?
Agreement from the other parties = extended by 28 days. Total 56 days from particulars.
Any further extension would need the court’s permission.
What is the procedure for a judgment in default?
C Applies under Part 12 CPR = Request for default judgment.
Prove to court:
a) the particulars of claim have been served upon the defendant; and
b) the defendant has not filed an acknowledgement of service form or a defence within the relevant time period.
