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Dispute Resolution > Unit 2 > Flashcards

Unit 2 Flashcards

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1
Q

If the value of the claim is £100,000 or less, where must it be started?

A

County Court

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2
Q

If the value of the case exceeds £100,000 where may be it be started?

A

High Court

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3
Q

For personal injury claims of £50,000 or more, where should it be started?

A

Hight Court but they can choose for it to be started in the County Court

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4
Q

What other factors should be considered when determining the appropriate court?

A

1) Complexity either in facts or legal procedures

2) If the outcome is important to the public in general.

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5
Q

If a claim is issued in the high court, can the judge transfer the matter to the county court at a later date?

A

Yes.

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6
Q

What does the county court consist of?

A
  1. County court hearing centers across the country and
  2. Two county court business centres
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7
Q

What does the county court money claims centre do?

A

All money-only claims made on paper, including both specified and unspecified claims, must be sent to the County Court Money Claims Centre (CCMCC).

If a hearing is required, the matter will be transferred to the County Court hearing centre local to the defendant

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8
Q

County Court Business Centre at Northampton – what does it do?

A

– 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 judgement and enforce it over the internet. CCBC also provides a service for bulk users, like utility providers and credit card companies that file large volumes of claims for money.

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9
Q

What are the 3 divisions of the High Court?

A

1) Kings bench division – actions in contract & tort

2) Chancery Division – Disputes arising over land, trusts, contentious inheritance matters, partnership claims and company law

3) Family Division – Where family disputes like defended divorces and adoption are resolved.

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10
Q

Where is the central office of the High Court located?

A

Royal Courts of Justice in London

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11
Q

When do proceeding commence?

A

When the claimant or their solicitor send a claim form and other relevant documents to the appropriate court to be ‘issued’.

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12
Q

When does time stop running?

A

When the claim form is recieved in the correct court office.

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13
Q

Once the claim form has been issued by the court, what happens?

A

Proceedings are formally started.

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14
Q

What is included in the heading of the claim form?

A

– relevant court
– solicitors’ fee account
– date of issue

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15
Q

What details of the parties are required on the claim form?

A
  • Names of parties.
  • Status of parties to be described accurately.
  • Parties full address and postcode.

– Failure to accurately describe parties’ details could result in the court striking the proceedings out (particularly if the mis-spelling means the wrong defendant is sued).

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16
Q

Where a defendant has died before proceedings are commenced, who should the be on the claim form?

A

Dead claimant’s PRs.

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17
Q

Does the claim form need to include a concise summary of the nature of the claim ad specify the remedy the claimant is seeking?

A

Yes.

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18
Q

What is included in the statement of value on the claim form?

A

Estimated or actual value must be inserted.

a) Specified claims – precise figure should be calculated INCLUDING interest that has accrued.

b) Unspecified claims –For claims in the high court, the claimant only needs to put an estimate which demonstrates the claim is in the right court (e.g., “more than £100,000).

– For unspecified claims in the county court claimant must state whether they expect to recover:
- Not more than £10,000 or;
- More than £10,000 but not more than £25,000; or
- More than £25,000.

-They should not state the exact figure

– When calculating the figure, they should disregard:

  1. Interests/costs
  2. Contirbutory negligence
  3. Counterclaims
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19
Q

For personal injury claims what does the claimant also need to state under the statement of value on the claim form?

A

Whether they expect to recover more than £5K for pain, suffering and loss of amenity.

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20
Q

Where the defendant trades under a business name, whose name should be on the form?

A

Both the business name and their personal name.

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21
Q

Under the financial summary of the claim, what should be provided?

A

Specified claims – An exact figure should be given, including interest accrued to the date of issue of proceedings.

Unspecified claims – An estimate of what the claimant expects to recover should be stated.

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22
Q

How are legal representatives costs for specified money claims set out?

A

Fixed under Part 45 CPR.

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23
Q

Should the claimant indicate on the claim form whether the human rights act will be raised?

A

Yes.

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24
Q

What is CPR 22?

A

Requires documents, including claim form, to be verified by a statement of truth.

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25
What are the formalities for the statement of truth in the claim form?
– Must be in the witness's own language, signed and dated. – If the particulars are served separately, they must also be verified by the same formalities (as above) – Failure to include a statement of truth means the court can strike out the document and, even if not, the claimant is disallowed from relying on its contents.
26
What are the formalities for the statement of truth where the claimant is an individual?
Either the party or their legal representative may sign the statement. – Where an individual signs on behalf of a party, the following should be added to the statement of truth: "I am duly authorised by the party to sign this statement"
27
Where a legal representative signs a statement of trust, this constitutes their statement as to the following:
a) the client authorised them b) They have explained to the client that in signing the statement of trust, the solicitor is confirming the client’s belief that the facts in the document are true; c) The client was warned of the possible consequences if it should subsequently transpire that the client did not have an honest belief in the truth of those facts; specifically, the client may be prosecuted for contempt of court
28
If a legal representative signs a statement of truth, do they sign in their own name or that of their firm or employer?
Their OWN name. They should also state the capacity in which they sign and add the name of their firm where appropriate.
29
If the claimant is a partnership, who can sign the statement of truth?
Any of the partners or a person having the control or management of the business may sign for a partnership
30
If the claimant is a company, who can sign the statement of truth?
A person holding a senior position such as a director, secretary, chief executive or the treasurer may sign on behalf of a company
31
If the solicitors' address is given as the address for service what does this imply?
It acts as a nomination for the solicitors to accept service of proceedings on the claimant's behalf.
32
How can an application to add a party to proceedings be made?
* An application to be joined as a party can be brought by an existing party to join someone else to proceedings or by a third party who wishes to be party to the proceedings
33
How can the parties substtute a party once the claim form has been served?
* An application to substitute a party can be brought in various circumstances, for example where liability relating to a claim has transferred to another party. * A claimant can only be added or substituted where the new claimant has given its consent in writing and that consent has been filed at court.
34
How does a party remove a party on the claim form after it has been served?
* Court will consider the test in CPR 19.2 as to adding, removing or substituting parties which focuses on whether it is desirable for the party to be added, removed or substituted so that the court can resolve all matters in dispute
35
What is the time frame for service of claim form?
Once a claim form has been issued, it must be served on the other parties within four months. I.e., it must be sent to or delivered to the defendant so they are aware of the court proceedings.
36
Does deemed service have to have occured within 4 months of service of claim form?
No. Only the relevant step set out in CPR 7.5.
37
How does the method of service "personally" apply?
* Served by simply handing the claim form to the defendant. If they refuse to accept the document, it may be left with or near them. * If the defendant is a partnership, the form may be left either with a partner or with a person who has the control or management of the partnership at its principal place of business. * Personal service is effected on a company by leaving the documents with a person who holds a senior position like director, treasurer, secretary or chief executive.
38
What are the methods of service?
1) Personally 2) First-class post 3) Leaving at specified space 4) Fax/electronic means 5) Alternative method authorised by court.
39
What are the formalities for service by fax/electronic means?
* The party to be served (or their solicitor) must have expressly confirmed they are willing to accept service in this manner. - An email address / fax number on the party’s headed paper is not enough to satisfy this requirement. - The inclusion of a fax number on the solicitor’s letterhead is sufficient indication they are willing to accept service by fax. Does NOT apply for email.
40
Where the party to be served is a limited company, can the documents be left / posted to the registered office of the company?
Yes.
41
Where should claim form be served for an individual?
Usual or last known residence.
42
Where should claim form be served for an individual being sued in the name of a business (sole trader)?
Usual or last known residence ; Principal or last known place of business
43
Where should claim form be served for an individual being sued in the name of a partnership?
Usual or last known residence; Principal or last known place of the partnership
44
Where should claim form be served for a limited liability partnership?
Principal office of the partnership; or any place of business of the partnership within the jurisdiction that has a real connection with the claim
45
Where should claim form be served for a Company registered in England and Wales?
Principal office of the company; any place of business of the company within the jurisdiction that has a real connection with the claim.
46
When must claim forms be served on the solicitor?
* Where the defendant’s solicitor is authorised to receive service, then the claim form must be served on the solicitor.
47
Does it matter whether the claim form was actually received or not?
No. However, if the claimant does have reason to believe that the other party is no longer resident/trading at a place, then they must take reasonable steps to find and serve at a current address.
48
What is deemed service?
When a document is taken to have arrived.
49
When does deemed service occur with the claim form?
Claim form is deemed to have been served on the second business day after the step required has occurred. E.g.,a claim form sent by post on Monday will usually be deemed served on Wednesday
50
Where particulars of claim are served separately, when must they be sent?
1) Either at the same time as the claim form; or 2) Within 14 days after service of the claim form (but no later than 4 months after the date of issue of the claim form)
51
What is the time frame for serving a claim form out of jurisdiction? (i..e, outside England & Wales)
– Document must be served within 6 months of being issued – If an order permitting service outside the jurisdiction is made, the time limit for responding to the claim will be extended. – Service is usually effected through the judicial authorities and its made without notice.
52
Is permission to serve proceedings required for scotland and norrthern ireland?
No.
53
What are the formalities for serving outside of jurisdiction?
* Claim form must be accompanied by a notice setting out the grounds on which the claimant is entitled to serve it outside the jurisdiction together with evidence that England and Wales is the proper forum. * Application must be supported by evidence (and is made without notice)
54
What are the 3 options for responding to a claim?
1) To file an admission (Part 14) 2) To file an acknowledgement of service (Part 10); or 3) To file a defence (Part 15)
55
What happens if the defendant chooses to ignore the claim entirely?
The claimant will be able to apply for a summary judgement.
56
What is the timeframe that the defendant must respond within? (i.e., do something)
14 days of deemed service of the particulars of claim.
57
How long does a claimant have to consider any offers made on admission of part of specified debt claim?
14 days.
58
If a defendant admits liability for a claim for an unspecified amount and offers a sum, what will happen?
Court will serve a notice on the claimant asking whether or not they accept the figure. – If YES – claimant may enter judgement for the amount offered
58
If the claimant does not accept the defendant's offer or the defendant admits liability but makes no offer, what happens? (unspecified claims)
The claimant will enter judgement for damages to be assessed at a disposal hearing.
59
Once a defendant has opted to respond by acknowledging service, how long do they have to file their defence?
28 days.
60
Who is acknowledging service a good option for?
* This is a good option for a defendant who is a) sure they want to defend their claim but b) is not yet in the position to draft a full defence as they are still gathering evidence.
61
Once a defence has been filed, must a copy be served on all other parites?
Yes
62
Who is responsible for serving the defence on all other parties?
The court.
63
Can the time limit for serving a defence be extended by agreeal of the parties?
* Parties can agree on an extension of 28 further days (this is the maximum). * Effect = Defendant has a total of 56 days from the date of service of particulars of claim. * Any further extension requires court’s permission.
64
When does the default judgement mechanism arise?
When a defendant chooses to ignore the claim form/particulars of claim.
65
What is the effect of a default judgement?
Claimant obtains a judgement without there being any considerations of the facts involved.
66
What is the procedure for a default judgement?
* Claimant makes an application under CPR Part 12 (i.e., complete a request for default judgement). They must satisfy the court that: 1. The particulars of claim have been served upon the defendant; and 2. The defendant has not filed an acknowledgement of service form or a defence within the relevant time period.
67
2 types of default judgement are..
1. Specified claim 2. Unspecified claim
68
How must a claimant for a specified default judgement apply for it?
* Indicate the date payment was due. * Calculate an up-to-date total for the interest claimed and * State a daily rate at which interest accrues.
69
For an unspecified default judgement, what is the process?
Disposal hearing = Court will grant the claimant’s request for default judgement, but the case will need to come back before the court to decide the amount of damages payable (a disposal hearing).
70
What are the 2 grounds that a default judgement can be set aside on?
CPR Part 13 1. Mandatory Ground 2. Discretionary Ground
71
What is the mandatory ground for setting aside a default judgement?
* Court obliged to set aside default judgements which were wrongly entered. * Wrongly entered = Where judgement has been entered too early, before the time for filing an acknowledgement of service or a defence (whichever is applicable) expired; or because the claim has already been paid in full.
72
What is the discretionary ground for setting asid a default judgement?
Court has the power to set aside a default judgement where the defendant has: (a) Has a real prospect of successfully defending the claim; or * I.e., where there is little point in D being allowed to re-open proceedings in a case where their prospects of success are limited / where the defence has strong merits. (b) There is some other good reason why the defendant should be allowed to defend the claim. * ‘Good reason’ = defendant was ill or away on holiday so could not respond within time constraints.
73
Will the court take into account the promptness of the defendant's application to set aside?
Yes. Excuses like pressure of work or the documents being misplaced would not be sufficient.
74
What form is filled out for applying for the default judgement to be set aside?
Form N244 – Supported by a witness statement outlining the defendant's submissions.
75
What are the 3 outcomes the court can make after receiving form N244(Interim application) – Summary Judgement?
(a) The defendant succeeds and the judgement is set aside, allowing them to continue to defend the action; (b) The claimant wins and the judgement remains in place, so they may proceed to enforcement; or (c) A conditional order is made. The judgement is set aside on condition the defendant pays monies into court (e.g., the amount of the claim). Least likely outcome and is used in situations where the court is concerned the defence is being pursued as a delaying tactic where the defendant does not have the money to pay.
76
What are the potential outcomes if the defendant's application for default judgement to be set aside succeeds?
1. Application granted on mandatory ground – Claimant liable to pay D's costs. 2. Application granted on discretionary ground – Costs in the case.
77
If D's application for default judgement to be set aside fails?
D pays C's costs.
78
* Can a claimant discontinue all or part of a claim?
Yes. At any time.
79
Do they need permission to discontinue a claim?
Not usually unless the court has granted an interim injunction.
80
Where there are more than 1 claimant, can a claimant discontinue a claim?
Only if all other parties consent in writing or the court gives permission.
81
Where there are more than 1 defendants can the claimant discontinue the claim at any time?
Yes. The claimant must file and serve a notice of discontinuance on the parties to the proceedings. If consent is required, a copy of this should be attached to the notice.
82
What is the effect of a discontinuance?
Proceedings are brought to an end against the defendant on the date the notice of discontinuance is served upon them. – Claimant will be liable for the costs of the proceedings unless the court orders otherwise and it is vital that the solicitor explains this to the client.
83
If a settlement is reached prior to the issue of proceedings, is the prospective claimant entitled to recover their legal costs?
No. Unless agreed.
84
Is it sufficient for settlements to be recorded in an exchange of correspondance if they're reached prior to issuing proceedings?
Yes. But more complex settlements should be formally recorded.
85
How should settlements be recorded after the issue of proceedings?
Court order / judgement.
86
What are the formalities for a consent order?
(a) Order agreed by the parties must be drawn up in the terms agreed; (b) It must be expressed as being ‘By Consent’ and (c) Signed by the legal representative acting for each of the parties to whom the order relates.
87
Are consent orders open to public inspection?
Yes.
88
Are tomlin orders open to inspection?
No. Confidential.
89
Can the agreed terms of a tomlin order go beyond what a court could have awarded?
Yes.
90
What are the key terms of a tomlin order?
– 'By consent' – Stay of proceedings – Liberty to apply – allows any party to apply to the court for the stay to be lifted and the court can be asked to enforce the settlement if a party does not perform its part of the agreement. – Payment of costs – Signed by parties' solicitors.
91
If D wishes to dispute the court's jurisdiction, how long after filing the acknowledgement of service form do they have to make a challenge?
14 days. If they fail to do so within this time, they will be treated as having submitted to the jurisdiction.
92
What must the application include to dispute jurisdiction?
– Evidence as to why England / Wales is not the proper jurisdiction.
93
Where the court refuses D's dispute of jurisdiction what happens?
* If the court refuses D’s application, the original acknowledgement of service ceases to have an effect and D must file a further acknowledgement within 14 days. * Proceedings will continue in the usual way.
94
Where the court grants D's dispute of jurisdiction, what happens?
* Where courts find that the claim should not have been brought in England and Wales, service of the claim form will be set aside, and proceedings come to an end
95
In the statement of value on the claim form what should be disregarded in the figure?
* When calculating this figure, the following should be disregarded: - Possible/ future awards of interest/costs - Contributory negligence; - Counterclaims
96
Statement of value / financial summary part of claim form:
Statement of value: Specified = precise figure plus interest which has accrued unspecified = high court – estimate demonstrating the claim is being heard in the correct court (e.g., high court - "the claimant expects to recover more than £100,000) Personal injury – Claimant needs to state whether the amount the claimant expects to recover for pain / suffering / loss of amenity is more than £5K. Financial summary of claim: Specified = exact figure including interest accrued to the date of issue of proceedings Unspecified = estimate of what the claimant expects to recover.

Dispute Resolution (8 decks)

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