Tort and Disputes Flashcards
(164 cards)
1
Q
What is the limitation period for the tort of negligence? What is the exception?
A
In negligence, six years after loss is sustained or three years after date of knowledge of loss, whichever is later.
Three years for personal injury.
In breach of contract, six years after breach.
15 year limit for negligence.
2
Q
When does the limitation period start for minors?
A
Upon turning 18.
3
Q
What are the advantages of mediation?
A
Cheaper and private and a commercial solution can be proposed.
4
Q
What are the disadvantages of mediation?
A
Parties can withdraw at any time and disclosure to the mediator is not required.
5
Q
What are the advantages of arbitration?
A
Quicker than courts and private and the arbitrator’s decision is binding.
6
Q
What are the objectives of pre-action protocol? Name at least three.
A
Litigation last resort.
Parties should exchange sufficient information about claim.
Reasonable and proportionate steps should be taken.
7
Q
What can the court do if a party failed to consider ADR?
A
Order a costs order on indemnity basis instead of standard.
8
Q
When does the duty to take positive action to prevent harm to third parties arise?
A
When there is a relationship of control like parent-child.
9
Q
When does the duty to take positive action to prevent harm to the other party arise?
A
When there is a special relationship like parent-child or the party has created a dangerous situation.
10
Q
Does all foreseeable risk need to be acted upon with precaution to protect oneself from tort?
A
No. The court will always balance the foreseeability of risk with the cost of taking precaution and public benefit.
11
Q
What are the three limbs of the Caparo test used to determine the existence of a novel duty of care?
A
- Foreseeability of damage.
- Proximity between parties.
- Whether it is fair and reasonable to impose a duty of care. Policy issues can be considered.
12
Q
Does the duty of care between road users and pedestrians apply to the police?
A
Yes.
13
Q
Does the police own the public a duty of care in the investigation of crime?
A
No. No duty of care is owed in investigative actions.
14
Q
When does the police own the public a duty of care?
A
During their operational activities, not investigational.
15
Q
Is foreseeability objective or subjective in tort?
A
Objective. You are always measured against the average reasonable person.
16
Q
When is a doctor NOT breaching his duty of care by using an experimental drug?
A
When they can find that their practice would be supported by a reasonable body of doctors.
17
Q
What is the maxim of res ipsa loquitur?
A
‘The thing speaks for itself’. Such accidents do not often occur without negligence. There must be no evidence of the claim.
18
Q
What is a Tomlin order?
A
An order from the court that proceedings are stopped (stayed) on terms that have been agreed in advance during mediation.
19
Q
Which country has jurisdiction in a sales of goods contract?
A
The country where the goods were delivered.
20
Q
What is pure economic loss?
A
Economic loss which is not a result of a personal injury or property damage.
21
Q
What defines a primary victim for the purposes of pure psychiatric harm?
A
Someone directly involved in the incident who were foreseeably under risk of physical injury.
22
Q
What is the threshold for having the option to make a claim in the High Court?
A
100k for all claims except personal injury which is 50k.
Anything less needs to be with County Court.
23
Q
What needs to be included in a statement of value?
A
Confirmation that the claim exceeds the threshold for that court.
24
Q
Who can sign a statement of truth?
A
Anyone controlling or managing the business.
The legal representative.
25
When is a claim form deemed to be served?
The second BUSINESS day after it is sent (so not tomorrow, the day after). 48 hours after posting basically.
26
Is filing a defence an acceptance of a court's jurisdiction?
Yes.
27
What is the thin skull rule?
You take your victim as you find them.
28
Do local contractors owe a duty of care to local businesses affected by their actions?
Yes.
29
When can someone apply for a default judgement to be set aside?
When they have a real prospect of defending the claim.
30
Do you need permission to apply for a defendant to be added to a claim?
Yes.
31
When is someone liable for pure economic loss?
When they assumed responsibility, gave someone advice and the person reasonably relied on that advice.
32
How many days does someone have to file an acknowledgement of service?
14.
33
How many days does someone have to file a defence?
28.
34
Is it mandatory for a court to set aside a default judgement that was entered too early (before defence was filed)?
Yes.
35
What is the cut-off time for delivering something on a business day for the purposes of service?
4.30 pm.
36
Can you recover the cost of a defective item in a claim for negligence?
No because it would be considered pure economic loss.
37
What defines a secondary victim in terms of pure psychiatric harm?
- Witnessed horrific event with senses.
- Suffered a recognised mental condition.
- Relationship of proximity with an actual victim.
38
What amendments to a statement of case can a court allow after expiry of the limitation period?
1. Add new claim on the same facts.
2. Change name.
3. Alter capacity as claimant based on same facts.
39
After receiving a Part 18 request for further information, can you add new stuff to your defence?
No. You can only give more detail to what you've already said.
40
What is the process of amending a defence?
1. Ask for claimant's consent.
2. If refused, apply to court.
41
When can a court give summary judgement?
When it considers that a defendant has no real prospect of defending the claim and there is no other compelling reason to dispose of the issue at trial.
42
When should you apply without notice to the other party for an injunction that affects them.
You should NOT give notice if there is urgency.
43
What is a freezing injunction?
An injunction which prevents a party from being able to dissipating or disposing of assets.
44
What is needed for an amendment of particulars of claim after it is filed and served?
The written consent of the other party or the permission of court.
45
When must defences to counterclaims be filed?
Within 14 days.
Unlike normal defences, where it is 28 days.
46
What duty do employers owe employees in tort?
Safe place and system of work.
Competent staff.
Adequate equipment.
47
How long before a hearing should an application to amend defence or particulars NOTICE be served?
There must be three clear business days between service of the notice and the hearing.
48
When must a claimant precisely calculate interest and daily rate of interest that will continue to accrue?
When it is a specific claim for money owed.
If it for damages, they only need to set out the statutory basis of entitlement to interest.
49
Can a defence and counterclaim be included in the same document?
Yes.
50
Can a witness statement be argumentative?
No. It has to be objective and about facts.
51
What is the document called that responds to a counterclaim?
'A reply and defence to counterclaim.'
52
What must the court be satisfied of in order to grant interim payment?
The court must be satisfied that the claimant would obtain judgment if the case went to trial.
53
Can a court grant an interim payment because of someone's financial hardship?
No.
54
Does two hours classify as immediate aftermath for the purposes of pure psychiatric harm?
Yes.
55
Are professional rescuers treated differently for the purposes of pure psychiatric harm?
No. They are treated like an average civilian.
56
What is pure psychiatric harm?
Psychiatric harm that is not accompanied by physical injury.
57
Can employees sue employers for breach of statutory health and safety regulations?
No. But the regulations will be relevent in assessing negligence.
58
What do you need to prove in order to sue your employer for unsafe equipment at work?
That the manufacturer of the equipment (not the employer) was at fault and caused the injury. If the manufacturer was at fault, the employer is also automatically liable.
59
What are the different bands for small claims, fast and multi track?
Small claims: less than 10k unless complex.
Fast track: 10 to 25k.
Mutli-track: Over 25k.
60
Does a directions questionnaire need to be filled?
Yes.
61
How long before hearing must all documents be disclosed?
14 days.
62
Do you need to disclose documents that negatively affect your case or positively affect the other's case?
Yes.
63
When is a document protected by litigation privilege?
When it is a document that came into existence when litigation was contemplated or ongoing and was produced for the purpose of litigation.
64
Can a party require a non-party to disclose documents?
They can apply to court for such a disclosure.
65
Is legal advice privileged?
Yes. It does not need to be disclosed.
66
What amounts to a waiver of privilege?
The disclosure of a document.
67
When will a court provisionally allocate a claim to a track?
After the defence has been filed.
68
What will a court take into account when considering whether to grant relief for breaching a direction?
Everything that will enable it to deal with the application justly.
69
What is the automatic penalty for a late costs budget?
You are assumed to have submitted a costs budget with only court fees included. Therefore, nothing else is recoverable. You have to apply for forgiveness.
70
What type of document do you NOT need to disclose?
Documents about issues which are not in dispute between parties.
71
What should a party do if the court has said that a claim will be struck out and the deadline has passed?
Make a written request for judgement to the court.
72
What is the process for variation to your costs budget?
Get the agreement of the other party first then submit to court.
73
Will a mother be a claimant if only her child suffers loss?
No.
74
Can a teenager be contributorily negligent?
Yes.
75
Can the defence of consent be used by a driver against their passengers?
No.
76
How much are damages reduced for contributory negligence causing injury?
25%.
77
For damages against future salary, can you increase the salary for inflation?
No because the money received in lump sum can be invested.
78
If your lifespan has been shortened can you recover income after death?
Yes but it's reduced to accomodate for the fact that you're dead. 25% if you have children. 33% if you don't.
79
Are damages reduced if you receive state benefits?
Yes but claimant has to pay that amount back to the state.
80
Can you recover damages for pain and suffering?
Yes but you need to have been awake and cognizant of the suffering.
It cannot be injured feelings.
81
What is the one action rule?
You can only make one claim on one set of facts.
82
Can you claim damages if you were dependent on someone who has been killed by negligence? What can you recover?
Funeral expenses.
Bereavement.
Loss of dependency (money only).
83
Will inheritance be taken into account when measuring damages for loss of dependency?
No.
84
What is the amount awarded for bereavement?
Fixed sum of 15k split between all claimants.
85
Can an estate start a claim for negligence after the person has died?
Yes.
86
Who is eligible for bereavement damages?
Spouses only.
87
Will insurance payment be ignored for the sake of death damages?
Yes. As if they don't exist.
88
What is the effect of the discount rate?
It increases the theoretical number of years of work by a decimal.
89
Can an estate recover damages for loss of income after the claimant's death?
No.
90
When do you stop being a dependent for the sake of recovering damages for losing your parent?
18 or last day of university.
91
If A prepares a report about B regarding C and is negligent, does A owe C a duty of care?
Yes.
92
When is opinion acceptable in witness statements?
When it is an opinion based on objective facts observed.
Example: 'he looked drunk because he was stumbling around'.
93
Is permission from the court required to instruct an expert?
Yes. The court will specify what opinion the expert can give and on what issues.
94
Is it mandatory for a witness statement to contain a statement of truth?
Yes.
95
Do experts owe a duty of care?
Yes.
96
Do parties need to serve witness statements to each other in advance of trial?
Yes but not in small claims track.
97
Is hearsay admissible in civil proceedings?
Yes.
98
Can experts advocate in court?
No.
99
To whom does an expert owe an overriding duty?
To the court.
100
When will a court grant permission for each party to instruct their own expert?
When the issue at hand is complex.
101
What will a court require two experts to convene and do?
Identify what they can agree on and what they are in disagreement on.
102
Do experts need to answer questions from the other side?
Yes within 28 days of service of the report.
103
When will employers be vicariously liable for prohibited acts by their employees?
If the prohibited act furthers the employer's business or is closely related to the business activity.
104
How long before trial should a witness summons be served?
Seven days.
105
When should pre-trial checklists be completed?
Eight weeks before trial.
106
What is the potential consequence of failing to complete a pre-trial checklist?
Judge will fix a hearing to ensure the parties are ready for trial.
107
Who completes the trial bundle and when should it be sent to the other party?
Claimant's solicitor - seven to three days before trial.
108
What is the process of dealing with a hostile witness?
If a witness won't cooperate, the party who called them can ask the judge to declare them a hostile witness, in which case they become a witness for the other side who can be cross-examined.
109
When will leapfrog appeals be allowed?
Extraordinary circumstances of public importance.
110
What is an assessment of costs on a standard basis?
Reasonably incurred, reasonable in amount, proportionate.
111
What is an assessment of costs on an indemnity basis?
Reasonably incurred and reasonable in amount, does not need to be proportionate.
112
In the context of assessment of costs, how is doubt reconciled in a standard and indemnity costs basis?
Standard: doubt is in favor of paying party.
Indemnity: doubt is in favor of receiving party because paying party is being punished.
113
Can a court order a third party to pay legal costs?
Yes when it is satisfied that the third party was the real person with interest in the litigation. A third party litigation funder usually satisfies this.
Part 46 order.
114
What happens if a defendant refuses Part 36 offer and the claimant beats their own offer?
If claimant beats their own offer, then defendant wasted court's time.
Punishment is 10% of additional damages (5% if over 500k). Extra 10% interest as well.
They also pay all costs after Day 21 of the offer on indemnity basis.
115
What happens if a defendant refuses Part 36 offer and the claimant does NOT beat their own offer?
Defendant has not wasted the court's time so there is no punishment.
116
What happens if a claimant refuses the defendant's offer then doesn't beat the offer?
They wasted the court's time but not as bad as a defendant wasting time. The punishment is that they pay the defendant's costs after expiry of the offer on the standard basis. 2% interest.
117
What happens if a claimant refuses the defendant's offer then loses the case?
Nothing. They pay all of the defendant's costs on a standard basis.
118
What is a Part 36 offer?
Offer to settle.
Must be in writing. Give period of not less than 21 days where, if offer is accepted, offeror pays costs up until then.
119
What happens if a Part 36 offer is accepted late?
If it is accepted by a defendant, they pay claimant's costs until then, regardless of lateness.
If it is accepted by claimant, the claimant pays their own costs from 21 days to acceptance - Split costs order.
120
What is qualified one-way costs shifting? (Personal Injury Claims)
Defendants of personal injury claims will not recover their own costs from other party if the claim was honest.
If it was dishonest, the defendant has to get an order from the court to recover the costs.
121
Are witness summons mandatory? Who sends them?
They're not mandatory.
Solicitors send them.
122
Should a court make a summary assessment of costs? If it does, what does it base it on?
Yes unless there is good reason not to.
Based on statements of costs.
123
Which hearings do summary assessment of costs apply to?
Fast track.
Multi-track lasting less than one day.
124
What is a security of costs order and who can obtain one?
Only a defendant can obtain one from the court.
Claimant must be residing outside the EU or broke or made it difficult to enforce a costs order.
125
How long does one have to comply with a costs order?
14 days.
126
What is the chain of judges that hear appeals in the County Court?
District judge of CC to circuit judge of CC.
127
What is included in a trial bundle?
Claim form and statements of case.
Witness statements.
Directions orders.
Expert reports.
128
What are the factors that will be taken into consideration when judging whether a warning sign protects an occupier from liability?
Specificity of warning.
How hidden the danger is.
The type of visitor.
129
When is an occupier not liable for faulty construction and repair?
The occupier:
- Acted reasonably in entrusting the work.
- Took reasonable steps to make sure contractor was competent and the work had been properly done.
130
Under what circumstances is an occupier liable to trespassers?
The occupier is aware of danger, aware of risk of trespasser coming into contact with the danger, and it's reasonable to offer protection from the risk.
131
Are occupiers liable to trespassers for anything besides death and injury?
No.
132
Can someone in control of a specific area of a building, even if temporarily, be the occupier of that space?
Yes.
133
What are some methods of enforcement of a costs order?
- Charge on assets.
- Posession of assets.
- Third party debt order to reroute debt.
- Attachment of earnings order.
134
What are the restrictions on taking control of goods to enforce a costs order?
Can't be a home and can't be necessary items which are priced at 1.3k maximum for individuals.
135
What are the restrictions on a third party debt order?
Debt must be to the debtor only.
Will not be done if it would cause debtor or family real hardship.
136
What are the restrictions on an attachment of earnings order to enforce a costs order?
Debtor is entitled to protected earnings which they need to live.
137
Who enforces costs orders?
Enforcement officers of the court.
138
Can you obtain a charging order against a property held abroad?
Yes.
139
Can you obtain a charging order against a property jointly held?
Yes.
140
How is an offer to settle changed or withdrawn?
Only with a notice to do so.
141
Who is a manufacturer under Donoghue v Stevenson Duty of Care?
Producers.
Repairers of products.
Suppliers of products.
142
Which loss is recoverable through Donoghue v Stevenson?
Any losses other than pure economic loss surrounding the product itself.
143
What sort of property which has suffered damage is not included in the recoverable loss under CPA?
Business property.
Property must be for private use.
Any property less than 275 pounds.
144
What are defences afforded by the CPA against producer liability?
- Defect was attributable for 'subsequent product' that was made.
- The state of science and technology made it impossible to discover the defect.
145
Can liability be excluded from loss caused by defective products?
No.
146
Will the character of a neighbourhood be taken into account when examining nuisance?
Yes.
147
When will an isolated event amount to private nuisance?
Only if the event arises from a continous state of affairs.
If it's completely isolated, it cannot amount to private nuisance.
148
Will abnormal sensitivity be considered when examining a nuisance claim?
No.
149
What are damages in private nuisance awarded for?
Loss of amenity of the land.
150
What are the valid defences against a claim of private nuisance?
- Statutory authority.
- Act of God.
- Necessity.
151
What is the rule in Rylands v Fletcher?
Something non-natural and likely to do mischief escapes and causes foreseeable damage.
152
What are the elements of public nuisance?
Something of public inconvenience has caused an individual particular harm.
153
What is the difference between a claim against a manufacturer in negligence vs CPA?
CPA will compensate damage to property but NOT business property or damage to the product itself.
Negligence will compensate all damage but NOT the damage to the product itself that caused damage.
154
Is a confidential settlement agreement attached to a Tomlin order or separate?
It is separate and identifiable by date.
155
Can any number of claimants or defendants be joined as parties to an existing claim?
Yes as long as the court deems it desirable.
156
Who can claim under loss of dependency after death?
Any spouse or partner living with person for two years.
Any child or parent.
Siblings and uncles and aunts are included.
157
How many experts will a court usually allow for fast-track claims?
One jointly appointed.
158
Is there an upper limit for claims in the County Court?
No. There is only a minimum for claims in the high Court.
159
Can solicitors obtain rights of audience in the Crown Court?
Yes.
160
What happens if someone fails to attend an information hearing for the purpose of enforcing a costs order?
A committal order, which sends them to prison in contempt of court, can be issued.
161
How many days to appeal a court decision?
21 days not including the day of the decision.
162
What is the timeline for international claims?
Six months to serve claim.
21 days to respond.
163
Which court issues a warrant of control vs a writ?
Warrant - County Court.
Writ - High Court.
164
When do particulars of claim need to follow claim form?
14 clear days of claim form being served.
