Dispute Resolution (FLK1)

Dispute Resolution (FLK1)

1. Appeals and Enforcement

   • District Judge decision in the County Court > appeal to Circuit Judge of the County Court Circuit Judge decision in the County Court > appeal to a High Court Judge
   • Part 36
     • A Part 36 offer is open for acceptance by an offeree until the offeror either withdraws it by serving written notice of withdrawal, or its terms are changed by serving a written notice of change
     • The court’s permission to accept a Part 36 offer is required in only very limited circumstances such as when a trial has started
     • Where the claimant secures a judgment which is at least as advantageous as the claimant’s own Part 36 offer, on the intermediate track the defendant will become liable to pay the claimant’s fixed costs with a 35% uplift from Day 22 onwards, unless it is unjust to do so. The Defendant will also be liable to pay interest at a rate of up to 10% above base rate on the Claimant's costs from expiry of the relevant period onwards
     • Where a Defendant has made a Part 36 offer that the Claimant has failed to beat, a split costs order would apply
   • Grounds for Permission to Appeal
     • The decision of the lower court was unjust because of a serious procedural irregularity in the proceedings
     • There is a compelling reason for the appeal to be heard
     • The appeal has a real prospect of sucess
     • The decision of the lower court was wrong (as at law, interpretation of facts or exercise of discretion)

2. Trial and Costs

   • Summary Assessment of Costs
     • When an order about costs does not provide for fixed costs to be paid, the Court will make a summary assessment of costs of the hearing unless there is a good reason not to.
     • A summary assessment of costs hearing is based on the Statement of Costs filed by the parties before the hearing
     • The costs of a breach of contract claim can be summarily assessed
     • Applies to hearings of less than one day on the multi- track
   • Detailed Assessment of Costs
     • Bills of Costs are prepared by the receiving party at the conclusion of the case
   • Part 45 Fixed Recoverable Costs
     • Apply to cases on the fast and intermediate track
   • Pre-trial Checklist
     • For fast track and multi-track claims, each party should file the pre-trial checklist not later than eight weeks before the trial date or the start of the trial period
     • Purpose = to check whether the directions made by the court have been complied with and whether the trial is ready to proceed
     • if neither party files a pre-trial checklist, the court will direct that any claim, defence or counterclaim will be struck out unless a pre-trial checklist is filed within seven days
     • If one party fails to file a pre-trial checklist, the court will usually fix a hearing and give directions
   • Standard vs Indemnity basis
     • The indemnity basis is typically used as a punishment, usually to reflect the court’s displeasure with the manner in which a party has behaved either pre-action and/or during proceedings
     • Whether assessing costs on the standard or indemnity basis, the court will not allow costs which have been unreasonably incurred or are unreasonable in amount
     • When assessing costs on the indemnity basis, the court does not consider if the costs are proportionate to the matters in issue - will consider this on the standard basis
     • Benefit of any doubt is given to the paying party on the standard basis vs the receiving party on the indemnity basis
   • If a party unreasonably refuses ADR then the sanctions set out in paragraph 16 can be imposed, including refusing to order interest on sums awarded
   • Parties should seek to agree a joint bundle for trial that is prepared by the claimant - must file the trial bundle not more than 7 days and not less than 3 days before the start of the trial

3. Case management, disclosure and inspection

   • Costs Budget
     • The court will rarely agree to amend approved costs budgets - the court must be persuaded that there have been significant developments in the case which could not have been anticipated, and this will rarely happen.
     • When a party fails to serve their costs budget on time, they must apply to the court for relief from sanctions promptly. Failure to file a costs budget is likely to be viewed as a serious or significant breach
   • Directions
     • Where a party has failed to comply with a direction, the other party may apply for an order to enforce compliance e.g. an 'unless order' - such an order is made with notice to the other party, unless there is a good reason not to e.g. urgency or a need for secrecy
   • Disclosure
     • Part 2 = privileged documents
     • Litigation privilege = communication between a party and a third party when litigation is taking place for the dominant purpose of preparing for the litigation
     • Inspection can only be withheld if the document is privileged (not if it's only confidential)
     • Legal Advice Privilege = communication between a party and its lawyer
     • Test of Standard Disclosure = The claimant and the defendant will each have to disclose the documents on which that party relies and the documents which adversely affect its own case, adversely affect the other party’s case and any that support the other party’s case.
   • Allocation
   • ADR
     • Any party not engaging in ADR proposed by another must serve a witness statement giving reasons within 21 days of the proposal
     • Burden on other party to show refusal is unreasaonbale
     • Breach of mediation terms = breach of contract
     • Injunctions are not available in mediation and there are limited rights of appeal, but the decision is binding
   • Interim Application
     • Made after litigation starts but before trial (form N244)
     • Must be served at least 3 clear days before court hearing
     • May be served without notice if there's exceptional urgency

4. Statements of Case and Interim Applications

   • Part 24 = Application for Summary judgment
     • It is in the discretion of the court to make an order under Part 24
     • Either a Defendant or Claimant can apply for Summary Judgement
     • Summary judgment is a form of interim application used where either the claim or the defence has no real prospect of success and there is no other compelling reason why the matter should proceed to trial
   • Particulars of Claim
     • Interest
       • Breach of contract (debt claim)
         • 1) The contract itself may specify a rate of interest payable on any outstanding sum
         • 2) If there's no provision in the contract, interest may be claimed under the Late Payment of Commercial Debts (Interest) Act 1998, which gives a statutory right to interest on a commercial debt that's paid late - 8% per annum above the base rate on the date the debt became due. The claimant can also claim statutory compensation for the inconvenience of having to recover the debt
         • 3) In all other cases, the court has discretion to award interest under either the SCA 1981 in respect of High Court Cases or under CCA 1984 for County Court Cases
         • For specified claims, the interest must be precisely calculated as a lump sum, plus a daily rate so an update can be provided easily
   • Defence
     • A copy of the expert’s report should not be attached to the defence - the defendant will not yet have permission from the court to rely on any expert evidence and only material facts and not their source should be included in the defence
   • Amendments
     • Can be made any time after filing but before service
     • Can be made after filing and service with consent of all parties or court's permission
     • Court may allow after expiry of limitation period if a new claim arises on the same facts or to correct a genuine mistake

5. Commencing and responding to a claim

   • If C admits that it failed to mitigate its losses, the value of the claim will fall to align with this
   • Service
     • Service by email is only valid if the receiving party has expressly confirmed that this method may be used for service or included an email address in a statement of case for the purpose of service of proceedings
     • Inclusion of a fax number on a solicitor's letterhead is sufficient indication that they will accept service by fax
     • A claim form can only be served on a firm of solicitors if the defendant has nominated them in writing and this should not be presumed
   • Time Periods
     • General rule = period for filing an acknowledgement of service is 14 days after service of the particulars of claim
     • General rule = period for filing a defence is (a) 14 days after service of the particulars of claim; or (b) if the defendant files an acknowledgement of service, 28 days after service of the particulars of claim
     • D and C may agree that the period for filing a defence shall be extended by up to 28 days - D must then notify the court in writing. Failing such an agreement or if further time was needed, then D would have to apply to the court
     • Limitation Period
       • Contract claim = 6 years from date of breach
       • If C misses the limitation period, D has a technical defence
       • Tort claim = 6 years from date tort was committed
       • Negligence claim = 6 years from date damage occurs from the breach of duty
       • PI claims = 3 years from date of cause of action or date of knowledge of person injured (18th birthday for minors)
       • Negligence claim where damage is latent (hidden) when cause of action accrued = later date of 6 years from cause of action or 3 years from date of knowledge of damage - long-stop = 15 years from date of negligence
     • General rule = particulars of claim must be served within 14 days after service of the claim form - however, the long stop service date = before midnight on the calendar day 4 months after the date of issue of the claim form
   • Default Judgment
     • Default judgment should be applied for if there has been no response to service of the proceedings and the deadline for such a response has passed (14 days after deemed service of the particulars or 28 days if the defendant files an acknowledgement of service in time) C will have to satisfy the court that D has been served and failed to reply
     • If seeking damages, the default judgment should be entered for an unspecified sum of money (damages) - the amount of damages payable will be determined by the court at a later disposal hearing
     • Cannot be obtained if there's a pending application by D for summary judgment or to have C's statement of case struck out
     • D can apply for the judgment to be set aside (form N244) on the mandatory ground if wrongly entered OR the discretionary ground if D has a prospect of successfuly defending the claim or D was ill or on holiday
   • Part 20 = Additional Proceedings
     • D can issue Part 20 additional proceedings against an additional party to seek an indemnity or contribution from them for any damages D may be ordered to pay C
     • A Part 20 claim form can be issued without permission of the court if done before or at the same time as filing the defence
   • County Court = claims of £100,000 or less, or PI claims of less than £50,000 - can be heard in the High Court if there is legal or factual complexity or the the outcome of the claim is a matter of public importance
   • High Court = claims worth more than £100,000 or £50,000 for PI claims involving damages
   • Claim Form
     • If a party is deceased, the claim form should include the names of the executors or administrators
     • For unspecified claims (e.g. breach of contract) in High Court C needs to put "more thank £100k" (or £50k for PI claims)
     • In County Court, C must state: 1) not more than £10k, 2) more than £10k but less than £25k or 3) more than £25k - interest, contributory negligence and counterclaims amounts are excluded here
     • Must be served on D within 4 months of being issued (6 months if D is outside England and Wales)
     • Deemed service = 2nd business day after the step required has occurred

6. An attachment of earnings order is not available if the defendant is self-employed

7. Evidence

   • The only admissible opinion evidence a witness of fact can give = a statement of opinion by him on any relevant matter on which he is not qualified to give expert evidence, if made as a way of conveying relevant facts personally perceived by him

8. District Judges (masters in Central London office) can hear trials up to £25,000

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