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Dispute Resolution > Final Review: DR > Flashcards

Final Review: DR Flashcards

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1
Q

What is the limitations period for most tort claims?

A

6 years

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2
Q

What is the limitations period for PI claims?

A

3 years

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3
Q

In cases where a victim dies within 3 years of accrual of a cause of action (PI), what happens?

A

The limitations period extends for another 3 years from the date of death, or from the date the PR of the deceased gained knowledge of the tort.

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4
Q

What is the limitations period for a negligence claim for latent defects in property that existed when construction was completed but were not apparent?

A

6 years from accrual, or 3 years from the earliest date the claimant knew or should have known- whichever is LATER.

Cannot exceed 15 years

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5
Q

What is the limitations period for contract claims?

A

6 years from breach

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6
Q

When does the clock stop on the limitations period?

A

When the claimant delivers the following to the court:
- A properly completed claim form with a request to issue proceedings
- Correct fee

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7
Q

Can a claim form be altered if submitted before the end of the limitations period?

A

Yes, if D correctly identified but mistakenly named.

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8
Q

What can P do if D raises the limitations defense?

A

P can ask court to disapply the limitations period, which the court has discretion to do.

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9
Q

If no specific protocol applies, which do you use?

A

Practice Direction on Pre-Action Conduct and Protocols

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10
Q

What are the key parts of the Practice Direction on Pre-Action Conduct and Protocols

A
  1. P should write to D with concise details of the claim
  2. D reply within 14 days (or 3 months for complex claim)
  3. Parties disclose key documents, consider joint expert, consider ADR
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11
Q

What are the key parts of the Personal Injury Protocol?

A

Claimant’s letter of claim should include:
- Clear summary of facts
- Details of injury on C’s life
- Hospital attended + reference number
- Known financial losses

D responds in 21 days, or C can issue proceedings

Parties’ letters refer to documents that will be disclosed

Parties should strive to choose a joint expert if needed
- C sends list of proposed experts to D
- D has 14 days to disagree, and if they do, parties can choose their own experts

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12
Q

What happens if the parties do not follow the relevant protocol?

A
  • Stay of proceedings to allow protocol to be complied with
  • Non-compliant party ordered to pay costs of the other party
  • Restricting interest on claim (C) /higher interest rate (D)
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13
Q

When can a party choose not to comply with protocol?

A
  • Limitations period is almost over
  • Court order is required to preserve evidence
  • Concern that D may seek to issue proceedings elsewhere to avoid UK courts
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14
Q

When can a party make a pre-action application for disclosure of documents?

A
  • Documents would be disclosed under standard disclosure anyway, AND
  • Early disclosure could assist is disposing of the claim/promoting settlement

Note: Non-parties can also apply for this

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15
Q

When can a pre-action application be made to inspect property?

A
  1. The property is or may become the subject matter of proceedings, OR
  2. It is relevant to the issues
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16
Q

In which court should a claim be started? (I.e., where should the claim form be issued?)

A

County Court, unless total value of the claim exceeds £50k for PI or £100k for other cases.

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17
Q

When does the Civil National Business Center normally transfer the claim to a hearing center?

A

After receipt of a defence or admission.

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18
Q

Where will the Civil National Business Center transfer a claim?

A

If D is an individual: the hearing centre local to their home address

If D is a company: the claimants preferred hearing center

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19
Q

When would commencing a claim in the High Court be appropriate?

A

Filing in the High Court is appropriate if:
- The financial value of the claim is high (100k+, 50k for PI)
- The claim is complex
- It is of general public importance

NOTE: The monetary threshold just means that a claim MAY be commenced in High Court- it is not required to be. If it a simple BoC, it can be issued in County Court.

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20
Q

What must the claim form include?

A
  1. P+D full name and address
  2. Brief details of the claim
  3. Value of the claim
    - not including interest, costs, or any counterclaim
  4. Which court P prefers
  5. Court fee
  6. Particulars of claim (optional to include w/ claim form)
  7. Signed statement of truth
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21
Q

What is the court fee?

A

0-£10k: Nothing
£10k-£200k: 5% of value of claim
£200k+: £10k

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22
Q
A
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22
Q

When must the particulars of claim be served on the defendant?

A

Within 14 days following service of the claim on D, but within 4 months of issuance of proceedings.

It can also be attached to the claim form.

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23
Q

What is a Part 8 Claim?

A

A type of claim which does not include a substantial dispute of fact.

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24
What is the process for issuing a claim form in a Part 8 Claim?
1. Claim form must include: - Questions the claimant wants the court to decide - Details of the claim being made - Capacity of the representative, if applicable 2. Must serve witness evidence with the claim form + statement of truth for that evidence 3. Claim form should include the particulars of claim
25
When must a claim form be served on D in the UK?
4 months after it's date of issue. Court has discretion to grant an application to extend in exceptional circumstances
26
When must a claim form be served on D outside of the UK?
6 months, with court permission.
27
What must service include?
- Claim form - Notice of funding - D's response pack
28
When may service be done by fax?
- Service by fax has been indicated in writing - Fax number has been provided, AND - Fax number is within the jxd
29
When can service be done via Document Exchange ("DX")?
- Party's address for service includes a DX - DX number is on the party's writing paper, AND - No explicit indication that DX is not acceptable
30
Can service be done by email?
Yes, but only if: - There is express consent to email service - Email address has been provided
31
On what day is service of the claim form deemed to be completed?
2nd business day after it has been mailed, delivered, faxed, emailed etc. NOTE: This presumption is indisputable
32
Where should the claimant send proceedings if the location of the defendant is unknown?
D's last known address, after reasonable inquiry is made to ascertain D's address
33
When/how should D raise invalid service?
Indicate on the acknowledgement of service, apply to set aside within 14 days
34
Who issues the certificate of service?
Depends who serves: - Court serves = they issue and send to claimant - Claimant serves = file certificate w court within 21 days
35
How long does D have to respond to a claim after being served?
14 clear days from service of the PARTICULARS OF CLAIM
36
When is service of the particulars of claim deemed to be effective?
DX: second day after posting Electronically or personally: same day if done before 4:30pm, next day if after
37
How may D respond to a claim?
1. Admit all or part of the claim 2. File and serve a defence 3. Acknowledge service and indicate an intention to defend (which must be done in 14 days)
38
Can the time to file a defence be extended?
Yes, by agreement of both parties for an additional 28 days. NOTE: This is on top of the initial14 days to respond AND the 14 days D has if they file an acknowledgement of service, so 56 days in total (14+14+28)
39
When is the earliest time a defendant may make an application for summary judgement/interim payment?
Once D files an acknowledgement of service
40
When may D dispute the court's jxd?
After receiving the claim form AND particulars of claim, by indicating so on the acknowledgement of service and making an application within 14 days thereof
41
What must D show to set aside default judgement?
D must make an application that shows: - They acted promptly - They have a real prospect of success, or - The court finds another good reason to set aside judgement
42
When MUST a court set aside default judgement?
- Judgement entered before time to respond expired - Claim was already settled - Judgement entered when D's motion to strike or MSJ was pending - Judgement was entered when D's request for time to pay was pending
43
What is a Part 20 claim?
- D's claim against 3Ps who might be liable to claimant or defendant - Counterclaims against the defendant
44
What is a Directions Questionnaire?
A questionnaire the court will send with the Notice of Allocation in a FAST TRACK or MULTI TRACK case, asking for estimates of trial length, whether the parties complied with pre-action protocol, whether experts will be required etc.
45
When must the parties return the Directions Questionnaire?
Within 28 days
46
What do small track claim directions normally provide?
- Documents are to be exchanged at least 14 days before the hearing - Hearing date - No expert used without court permission
47
What do fast track claim directions normally provide?
- Disclosure takes place within 4 weeks - Witness statements exchanged within 10 weeks - Expert reports exchanged within 14 weeks - Pre-trial checklists sent to parties at 20 weeks, returned at 22 weeks - Trial at 30 weeks
48
What do intermediate track claim directions normally provide?
Similar to fast track directions, but long time periods Can also be agreed between the parties or done via case management conference.
49
What do multi-track claim directions normally provide?
- Encourage ADR - Disclosure requirements - No. of witnesses the party may call - Provision for exchange of witness statements - Cost budgeting provisions
50
In a multi-track claim, what will the court usually require the parties to file?
- Reports disclosed at least 14 days before conference - Costs budgets 7 days before conference - Case summary
51
When should an interim application be made to the court?
As soon as it is apparent that it is necessary or desirable, on three clear days' notice (5 if by telephone)
52
Does the other party require notice if an interim application is made?
Not if there is good reason, such as a risk of that party disposing of evidence.
53
If no notice was given when an interim application was made, how long does a party have to try and set aside an interim order?
7 days after the order is served on them
54
What should the party seeking an interim order file with the court? When should they file it?
All evidence relied on & notice filed first Then: - Case summary and proposed draft order, no later than 2 days before the hearing
55
Before a summary judgement hearing, when must written evidence be served by the applicant? When must the opposing party respond?
Applicant: At least 14 days before the hearing Opposition: At least 7 days before
56
What must an applicant show in a MSJ?
- The other party has no real prospect of success - There is no compelling reason why the case should go to trial
57
What is an application to strike out a claim?
An interim application to the court asking to strike a claim in the Statement of Case because: - There is no reasonable ground for making or defending the claim - It is an abuse of the court process - There was a failure to comply with a rule or order
58
What are the grounds for an interim payment to be granted?
- D has admitted liability - C has obtained judgement but sum not yet assessed - Court satisfied C would obtain a substantial sum at trial NOTE: Interim payments are ALWAYS discretionary. Parties should ask themselves first before making application.
59
When can an application for interim payment be made?
Earliest: when the time for filing an acknowledgement of the claim has passed Latest: 14 days before the hearing
60
Which courts may grant injunctions?
High Court can grant any type County Court has limited jxd
61
What are the common interim injunctions to know for the SQE?
- Unless Order - Set Aside Default Judgement - MSJ - Application to Strike - Relief from Sanctions - Interim Payment - Interim Injunction (mandatory or prohibitory) - Freezing Injunction - Search Order
62
What is a witness entitled to receive if they are summoned to court?
- Money for travel and lost time (capped at £67) - Can also pay for overnight stay if needed NOTE: The money must be included with the witness summons to be effective
63
What is a Tomlin Order?
An order which confirms the parties have agreed a stay because they have reached a settlement + schedule of payments
64
In a multi-track case, when is the costs budget filed?
It depends on how much the claimant is seeking: - Less than £50k, budget filed with Directions Questionnaire (i.e., 28 days after DQ received) - £50k+, at least 21 days before Case Management Conference
65
When must a statement of costs be filed for an interim application?
24 hours before a hearing 2 days before a trial
66
For trial costs, what is a "detailed assessment"?
Winning party prepares a bill of costs within 3 months of the judgement/order. - If greater than 20% of the figures in the costs budget, they must give reasons - Other party has 21 days to file points of dispute
67
When is a security for costs order available?
If D is worried P will not pay their costs if D wins, and: - P is outside the jxd - P is a company - P has changed address to avoid consequences of litigation - P gave incorrect address - P is suing for the benefit of another person - P has moved assets overseas NOTE: Only a defendant can make this application.
68
How long does a party have to clarify a Part 36 offer?
7 days
69
When can you withdraw a Part 36 offer?
After the relevant period expires (minimum 21 days), so long as offeree has not served a notice of acceptance
70
Can a Part 36 offer be accepted orally?
No, it must be in writing
71
If claimant rejects a Part 36 offer, then gets a greater award at trial, what happens?
The offer has no effect on the costs awarded
72
If claimant rejects a Part 36 offer, then gets a lesser award at trial, what happens?
- D pays reasonable costs (standard basis) up until the relevant period - C pays D's reasonable costs after relevant period expires
73
If defendant rejects a Part 36 offer, then claimant gets a greater award at trial, what happens?
- D pays an enhanced rate of interest after the time for acceptance has expired - Costs likely assessed on indemnity basis - Additional 10% damages also available for first 500k
74
If defendant rejects a Part 36 offer, then claimant gets a lesser award at trial, what happens?
The offer has no effect on costs
75
What is the interest rate for unpaid judgements in the High Court?
8% per annum
76
Does interest accrue for unpaid judgements in County Court?
Only if over £5k NOTE: CC judgement of over £600 can be transferred to High Court, where interest accrues at 8% per year
77
If the winning party wants the losing party to attend an oral examination to discuss their means and assets, how and when must they do this?
Apply for a court order and serve it on the losing party personally, no less than 14 days before the hearing. Winning party must also file an affidavit no less than 2 days before the hearing about how much remains unpaid.
78
Can a court take control of a judgement debtor's property and sell it to satisfy a judgement? If so, how?
Yes, using a writ/warrant of control (high/county). - 7 days notice required - Must provide inventory of seized goods - Writ/warrant good for 12 months - Seized goods must be sold within 7 days - Cannot seize goods used in the debtor's trade, or necessary household items.
79
What is a third-party debt order?
A way for a judgement creditor to get the judgement debtor's bank to pay them directly
80
If a judgement debtor has an interest in land, can a judgement creditor force them to sell it to settle a debt?
Yes, by applying for an order of sale. This can apply even if the interest in property is joint.
81
What is an attachment of earnings order?
A way for a judgement creditor to compel judgement debtor to make regular deductions from their earning to satisfy the debt. Must be in regular employment.
82

Dispute Resolution (10 decks)

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