SQE2 Disputes Resoution Flashcards
Why might a party be punished in relation to ADR and what might the punishment be?
- Failing to respond to request for ADR
- should provide reasons why it is no appropriate - Court has discretion to:
- penalise them in respect to legal costs they can recover/making them liable for other sides legal costs
What are the limitation periods?
- Contract (6 years)
- after breach regardless of knowing causation of damage - Tort (6 years)
- date of knowledge of all facts of essential elements (meaning identified defendant’s act/omission may have caused/contributed to loss) - Personally Injury (3 years)
- date of knowledge that injury was significant, attributable (in part) to tort of identified defendant - Fatal Accidents (3 years)
- Claimant Dies within 3 years
- 3 years from death; OR
- 3 years of date of knowledge of PR
- statute barred if they die after 3 years - Defamation (1 year)
- Unfair Dismissal (3 months)
How does a make good clause and limitation on contractual liability effect limitation period?
Make good clause
- only binding to make good defect
- does not stop 6 year limitation period from taking effect
Limitation of liability clause
- Any shortening of the limitation period in contract will be subject to reasonableness test under Unfair Contract Terms Act 1977
When does limitation period start running for latent defects?
Time limit is:
- 6 years from the date of accrual of cause of action
- 3 years from earliest date on which potential claimant knew or reasonably ought to have known, material facts necessary to bring action alleging negligence
- Longstop of 15 years after act/omission
When does limitation period start running for fraud, concealment and mistake?
Fraud/Concealment
- day after when claimant discovers the fraud or concealment, or could have done so with reasonable diligence
- Will not run whilst a relevant fact has been deliberately concealed by the defendant
Mistake
- day after when claimant discovers the mistake, or could have done so with reasonable diligence
When does limitation period begin for minors and those lacking capacity
- on 18th birthday
- when they receive certification that claimant is of sound mind
What are thepractice directions (step by step) and when are they used
Used when no specific protocol applies
Steps
1. claimant to write to defendant with concise details of claim
2. defendant to respond if claim is accepted or reasons why not within reasonable time (14 days in straightforward case / 3 months in complex case)
3. parties to disclose key documents relevant to issues in dispute.
4. Parties should be aware that court must give permission before they can rely on expert evidence and may limit fees recoverable
5. Parties to consider using single joint expert (if needed at all)
6. Parties to consider ADR (may be required to give evidence of this if proceeding are issued)
Consequences for not complying with pre-action proposals / what might the court consider when punishing?
Court likely only concerned with real breaches not smaller or technical ones.
- Will consider effect of breach when giving imposing punishment
- may relieve the parties of obligations to comply with requirements
Consequences may include:
- Sanctions (breaching party to pay other sides costs)
- Stay of proceedings to allow directions/protocol to be followed
When could issue preceding without compliance with protocols?
Where end of limitation period is close
Where court order is required to protect or preserve evidence or assets
Where there is concern that D may seek to issue proceedings in another country
What must be met for application for pre-action disclosure?
- respondent is likely to be a party to proceedings;
- applicant is likely to be party to proceedings;
- documents, or classes of documents, requested would be disclosed under standard disclosure; and
- disclosure now would fairly assist in disposing of the claim without the need to issue proceedings and save costs
If non-party
- if it will support the claim, or adversely affect the opponent’s case; and
is necessary to dispose of the matter fairly or to save costs
What must be met for application for pre-action inspection of property?
Applicant must show that property in question:
- is, or may become, the subject matter of the proceedings
- is relevant to the issues that will arise in relations to those proceedings
Can costs be recovered for pre-action protocol period?
Generally not
Exception
- if proceedings were issued but stayed to allow parties to comply with protocol
- an award to recover some wasted costs is more likely
- still only proportionate costs are likely
What claims does Queens Bench Division deal with? What are the special courts in it?
- Breach of contract
- Negligence
- Personal Injury
- Land Possession
- Non-Payment of Debts
Special Courts
Business and Property Courts including:
- Technology and Construction Courts
- Commercial Courts
- Construction Courts
What claims does chancery division deal with?
- Equity and trusts
- Tax
- Land
- Business Disputes
- Contentious Probate
- Bankruptcy
- Professional Negligence
Different forms of ADR
- Negotiation
- most flexible
- without prejudice
- can be done after exchange of all evidence - Arbitration
- no strict rules of evidence
- 3rd party make legally binding decision - Mediation
- informal process where neutral 3rd party assists in negotiation between parties
- no strict rules of evidence
- only binding if parties agree and sign
- costs shared
What is included on a claim form?
- names and addresses of parties
- details of claim
- remedy sought
- value
- preferred court of hearing
- court fees and costs
- statement of truth
- Claimants address for service
- Particulars of claim (can be sent separately within 14 days following service of claim form)
How should names be given on claim form (including for Partnerships and companies)?
General
- Full unabbreviated name
- Also any name they carry on business under
Partnership
- Full name of partnership
- Full name of every partner
Company
- Registered name of LLP or Company
- Including appropriate suffix (LLP, LTD, PLC)
Process (time-limits) for serving and responding to claims?
- Claim Form
- within 4 months in jurisdiction
- within 6 months outside (REQUIRES PERMISSION if outside Scotland or N. Ireland) - Particulars (if separate)
- within 14 days following service of claim form
- Still within 4/6 months - Response within 14 days of deemed date of service of Particulars
- consider if served with claim form or separately
What is a Part 8 Claim? What should be stated on the claim form?
Used if claim does not involve a substantial Used dispute of fact
Claim form must state
- That part 8 applies;
- The question that the claimant want the court to decide or remedy sought and the legal basis for claim to that remedy;
- Details of claim being made, and
- Capacity of the representative if the claim is being made in a representative capacity.
Also include
- Witness evidence (plus statement of truth)
- Particulars
How to respond to Part 8 claim and what if failure to respond?
- File their witness evidence with acknowledgement of service
(claim then treated as if fast track)
Failing to respond
- Cannot take part in hearing unless court gives them permission
What documents should be included in service of claim form to defendant?
- Claim form
- Particulars of claim (if provided)
- Medical report (if appropriate)
- Schedule of past and future losses
- Notice of funding
- Certificate of suitability for litigation friend (if appropriate)
- Response pack
