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Dispute Resolution

Emma Hodge Civil Law SQE Inglés 120 fichas

Fichas del conjunto (120)

  1. 1What are the 3 types of ADR?1- Negotiation 'without prejudice'
    2- Mediation
    3- Arbitration
  2. 2What is the overriding objective?To resolve cases in a proportionate, expeditious, and fair manner.
  3. 3What are the penalties for unreasonable refusal to engage in ADR?Costs penalties may be awarded
  4. 4What is Arbitration?- more formal procedure
    - leads to final and binding decision capable of enforcement by the courts
    - contractual process
    - process overseen and final decision made by independent arbitrator
  5. 5What is mediation?- most commonly used form of ADR
    - informal, confidential, 'without prejudice', and voluntary
    - neutral third party assists parties in dispute to reach a resolution
    -non-binding until a final written agreement has been signed
    - no strict rules of evidence
  6. 6What are the statuary limitation periods for claims for: a) unfair dismissal b) defamation c) fatal accident d) personal injury d) tort e) breach of contract f) longstop for latent defectsa) unfair dismissal 3 months
    b) defamation 1 year
    c) fatal accident 3 years
    d) personal injury 3 years
    d) tort 6 years
    e) breach of contract 6 years
    f) longstop for latent defects 15 years
  7. 7What is the date of accrual or knowledge?Often the date on which the tort happened (accrual); or
    The earliest date at which the claimant had knowledge of all the facts establishing all of the essential elements of the claim. It is not necessary to have precise details, merely sufficient information to commence investigations into a potential claim.
  8. 8What is the date of knowledge in clinical injury claims?The date on which the claimant had knowledge that:
    - the injury was significant;
    - the injury was attributable to act or omission alleged to constitute negligence, nuisance, or breach of duty;
    - the identity of the defendant
  9. 9What is the limitation period for claims involving death?- 3 years from the date of death; or
    - 3 years from the date of knowledge of the deceased's personal representative
    - statute-barred if death occurs after 3-year limitation period has already expired
  10. 10Limitation in contract - when does period start?6 years from the date of breach
  11. 11Does a make-good clause in construction contracts supersede the statutory limitation period?NO
    The relevant period is still 6 years
  12. 12What is the limitation period for latent defects?- 6 years from the date of accrual; or
    - 3 years from the date the claimant knew or should reasonably have known;
    and no later than
    - 15 years from the date of the act or omission.
  13. 13How is the limitation term calculated?Starts the day after the date of the cause of action (accrual or date of knowledge)
    Ends the date a completed claim form is delivered to the court office with the correct fee
  14. 14When does the limitation period begin for a claimant who is a minor?The period starts on the claimant's 18th birthday
  15. 15When does the limitation period begin for a claimant who lacks capacity?Certification that the claimant is of sound mind.
    NB limitation period is not paused if claimant looses capacity during that period
  16. 16Pre-action protocol. What is the time period for the defendant to respond to the claimant's concise details of claim?-14 days for a straight-forward case
    - 3 months for a complex case
  17. 17What does a personal-injury protocol template letter require?- summary of facts
    - details of injuries sustained and impact
    - hospital attended and reference number
    - indication of financial losses
  18. 18What is the Personal-injury protocol time limit for defendant's response?21 days to respond
    3 months to provide admission or denial - if denial with reasons and list of relevant documents
  19. 19What are the consequences of failing to comply with the protocol?- sanctions, e.g. costs award, restriction of interest
    - stay of proceedings to allow for protocol steps
  20. 20Can costs from the pre-action protocol period be recovered?No if the claimant decides not to continue with claim
    Yes if proceedings are issued (proportionate costs only)
  21. 21What are the 4 key steps in pre-action protocols?1- letter of claim
    2- letter of response
    3- disclosure of relevant documents
    4- agreement on experts
  22. 22When should a claim be issued in the High Court?Value of claim >£100K or >£50k for personal injury, or complex case, or
    important to public
    NB simple cases with higher value may still be issued in County Court
  23. 23Where should County Court claims be issued?County Court Money Claims Centre for:
    - debts (specified claims) up to £100k
    - most non-specified damages claims
  24. 24When does the CCMCC transfer the case, and to which local hearing centre?- transfer after receipt of defence or admission
    - to hearing centre local to defendant's home address (if individual) or preferred centre (if company)
  25. 25Which claims can be issued out of a local hearing centre?- landlord/tenant
    - claims for possession
    - claims unlikely to involve a substantial dispute of fact
  26. 26What are the 3 divisions of the High Court?- Chancery
    - Queens bench
    - Family
  27. 27What claims does the Queen's Bench divisional deal with?- defamation
    - breach of contract
    - negligence
    - personal injury
    - land-possession
    - non-payment of debts
  28. 28Which specialist courts are within the Queen's Bench division?- The Technology and Construction Court
    - The Commercial Court (complex national and international business disputes)
  29. 29What claims does the Chancery divisional deal with?- equity and trusts
    - commercial fraud
    - tax
    - IP
    - land
    - business disputes
    - contentious probate
    - regulatory work
    - bankruptcy
    - professional negligence
  30. 30What is included in a claim form (N1)?- name and address of parties
    - brief details of the claim
    - remedy claimed
    - value (damages sought)
    - preferred court
    - court fee and legal costs claimed (fixed or to be assessed)
    - statement of truth
    - claimant's address for service
  31. 31What are Particulars of Claim?- formal written statement setting out details of claimant's case
    - may be included with claim form or filed within 14 days following service (and within 4m of issuance of the claim)
  32. 32What must you supply to the court to issue a claim form?- copies for service on each defendant plus 1 for court
    (- particulars of claim)
    (-certificate of suitability of Litigation Friend if appropriate)
    - notice of funding (if court is serving)
  33. 33What is the time limit for service of claim form?4 months from the date of issue; or
    6 months if outside the jurisdiction
  34. 34What are the methods of service of claim form?- first class post
    - service on nominated solicitors
    - personal service ; handed to the individual being served
    -fax (if consent)
    -document exchange (if DX provided)
    -email (if express consent)
  35. 35When is a claim form deemed to be served?the 2nd business day after the steps taken for service
  36. 36What is the deadline for service of particulars of claim?14 days from the date of service of the claim form; or
    4 months from date of issue of the claim form if earlier
  37. 37What is the deadline for responding to a claim?14 days after the deemed service of the particulars of claim
  38. 38How is deemed service of particulars of claim calculated?- 1st class post: 2nd days after posting
    -DX: 2nd day after left with/collected by service provider
    - Delivered: same day if before 4:30pm on business day, or next business day
    -fax: same day if transmission before 4:30pm on business day, or next business day
    - other e-means: same day if before 4:30pm on business day, or next business day
    - personal service: same day if before 4:30pm on business day, or next business day
  39. 39What are the options for responding to particulars of claim?- admit the claim
    - file and serve a defence
    - acknowledge service and indicate proposal to defend
  40. 40Can the time limit for response to particulars of claim be extended?YES- for a further 28 days
  41. 41What is the time limit for filing a defence?14 days from filing acknowledgement of service (28 days from deemed service of particulars of claim)
  42. 42How are deadlines calculated?- days = clear days
    - if the time limit ends on a day the court office is closed, it extends to the next business day
  43. 43How can a judgement in default be set aside?1 show defendant has real prospect of success AND
    there is some other good reason
    2 Judgement was entered too early
    3 Defendant had earlier applied for strike-out and application not yet considered
    4 Claim has already been paid/settled
    5 Defendant has entered request for time to pay which has not been considered
    NB defendant must act promptly
  44. 44What is a Part 20 Claim?A counterclaim or third party claim filed with the defence or at a later time
  45. 45What are the 4 types of Part 20 Claims?1- counterclaim against party (usually claimant) - no permission needed if filed with response
    2 claim against 'blameworthy' third party absentee - permission not needed
    3 claim for indemnity or contribution - against co-party- no permission needed if filed with defence
    4 counterclaim against a third-party absentee (brought into case as party) - permission needed
  46. 46What is the time limit for responding to Part20 Claim?14 days from the date of service
    Failure to respond (acknowledge/defend) results in deemed admit the main action
  47. 47What are the key features of the Small Claims track?- up to £10k, or £5k for road traffic pain etc, or £1k for other personal injury
    - fixed costs and reasonable expenses
    - max £750 expert fees
  48. 48What are the key features of the Fast Track?- £10k to £25k (or >£5k road traffic or >£1k other personal injury)
    - trial within 30 weeks of allocation to fast track
    - proportionate costs to amount in dispute
    - certain costs are fixed (personal injury, road traffic accident, employer liability, public liability)
    - emphasis on written evidence
    - single joint expert
  49. 49What are the key features of the Multi-track?- >£25,000 or trial >1day
    - usually allow each side to instruct experts plus experts in more than one field
    - cost budgets must be filed before initial directions hearing
    -directions questionnaire
  50. 50When must a directions questionnaire be filed?Within 28 days of the date of service of the order
  51. 51What are the key case management steps?- disclosure
    - witness statement exchange
    - pre-trial checklist
    - return of pre-trial checklist
    - date of trial
  52. 52What points are covered in the Directions Questionnaire?- compliance with pre-action protocol
    - case management information (track allocation, directions on disclosure, any amendments or further information requests)
    - experts
    - witnesses
    - estimate of length of trial
    - anticipated costs
    - trial periods and pre-trial checklists
  53. 53What is an Unless Order?An order from the court specifying the penalty that will be imposed UNLESS the party complies with a direction
  54. 54What must a person show to convince the court to permit the person to inspect documents in someone else's possession prior to filing a civil claim?That the documents are necessary for the party to investigate the claim properly.
  55. 55What is disclosure?The duty to inform the other party of the existence of a document.
  56. 56What is inspection?The process which enables a party to view certain documents disclosed by the other side.
  57. 57Which documents must be disclosed in standard disclosure?Any documents that
    - the party intends to rely on
    - affect the party's case adversely
    - affect the other side's case adversely
    - support the other side's case
  58. 58When does a party have control of documents?- physical possession
    - a right to possession, to inspect or to take copies
    - had possession but no longer have the document
  59. 59What are the 3 sections of a disclosure list?1 Documents in the party's control that they do not object to the other side inspecting
    2 Documents in the party's control that they do object to the other party inspecting (with reasons)
    3 A list of documents no longer in their control, stating when they last had control of the documents and where they are now
  60. 60What is the standard time limit for disclosure?Standard disclosure: 28 days from the date of the directions order for disclosure
    For multi-track non-personal injury cases: at least 14 days before the first case management conference, or otherwise with the Directions Questionnaire
  61. 61What is Automatic Inspection?Inspection of documents that the other party have stated they have no objection to being inspected
  62. 62What is Specific Disclosure?A party may request disclosure of specific documents that
    - it has reason to believe may contain relevant information
    - may lead to a relevant train of enquiry
    - it believes the other side's disclosure is inadequate, e.g. references to documents which are not disclosed
  63. 63What are the options for a party not content with the other side's disclosure?- apply for specific disclosure
    - serve a notice to admit the facts
    - apply for an unless order
    - file a request for information
  64. 64List 3 grounds for refusing inspection1. Privilege
    2. Document is no longer in the Party's control
    3. It would be disproportionate
  65. 65List 4 types of privilege1. Legal advice privilege (solicitor-client)
    2. Litigation privilege (solicitor-third party)
    3. Common interest privilege (multiple defendants or claimants, or group actions)
    4. Without prejudice privilege
  66. 66What is public interest immunity?Akin to privilege where disclosure would harm the nation or the administration of justice
  67. 67What must a witness statement contain (6 points)?- title of case
    -indication on whose behalf the statement was made
    - name and initials of witness
    - whether the witness is a party or employed by a party
    - evidence of witness in 1st person
    - statement of truth
  68. 68What is a witness summary?- used in exceptional circumstances when it is not possible to obtain statement by date of exchange
    - requires permission from court
    - identifies witness and summarises factual issues that their evidence will cover
  69. 69What is an Affidavit?Written statement confirmed by oath or affirmation.
    Required to support applications for freezing injunctions or search orders
  70. 70What is Hearsay evidence?- oral or written statement made out of court
    - purpose to prove the truth of what is being stated
  71. 71What is evidence-in-chief?Witness evidence heard in court - e.g a witness confirming in court that their signature is on the witness statement and that statement is correct
  72. 72What is the process for a party wishing to rely on hearsay evidence?Serve a notice on the opponent
  73. 73How can a party respond to a notice of hearsay evidence?Within 14 days of receipt of the notice
    - make an application to call the witness to court
    - serve a notice of intent to attack the credibility of the witness
  74. 74What 6 factors does a court consider regarding the weight to be applied to hearsay evidence?1. Would it have been reasonable and practicable for the witness to attend
    2. Was the original statement made contemporaneously with the event
    3. Does the evidence involve multiple hearsay
    4. Was there any motive to misrepresent the position or conceal facts
    5. Was the original statement edited
    6. Can there be any suggestion that the events leading to the evidence being presented as hearsay evidence constitute n attempt to prevent proper evaluation
  75. 75What is the procedure regarding a Notice to Admit Facts?Must be served no later than 21 days before trial
    Aim is to admit or agree facts to reduce issues before court
    Facts admitted are deemed established
    If facts not admitted and subsequently proved at trial, there may be a cost penalty
  76. 76Who can give opinion evidence?Only expert witnesses and not lay witnesses
  77. 77Does an expert witness need to be qualified or certified?NO. The expert must have qualifications and/or experience that qualify them as an expert. No certification is required.
  78. 78What are the 4 conditions relevant to expert opinion?1. The opinion must depend on special knowledge, skill or training (i.e. outside Judge's experience)
    2. The expert must demonstrate that they can be regarded as a true expert in the field
    3. The expert must give evidence to a reasonable degree of certainty regarding their opinion, inference , or conclusions
    4. The expert must demonstrate the basis of their opinion and conclusions.
  79. 79Does an expert witness give oral evidence?Usually no. Oral evidence may be permitted where it;
    - is likely to have an impact on the outcome
    - will assist the judge
    - there is a risk of injustice if the expert evidence is not tested
    - the costs are not disproportionate
  80. 80What are valid reasons to use own experts?- complex issues and high value
    - different schools of thought relating to the issue
    - issue is of high significance to the outcome
  81. 81What is the time limit for a party to ask questions of the expert?28 days from the expert sending the report (can be extended by court if reasonable)
  82. 82Do the experts for each side meet before trial?Yes to define issues on which they can and cannot agree
    Meeting is 'without prejudice'
    Legal representatives do NOT attend
  83. 83What is a Tomlin Order-confirms that parties have agreed settlement and recording its terms
    - agrees that case should be stayed
    - if terms of settlement are not implemented, proceedings can be re-opened
    - issued by court as a consent order
  84. 84What does a pretrial hearing consider?- extent of compliance with orders and directions
    - trial timetable
    - number of experts and witnesses who may give evidence at trial
  85. 85What is a case summary?- clearly specify issues of fact and agreed and in dispute
    - provide synopsis of evidence
    - agreed where possible
    - max 500 words
  86. 86What is a witness summons?- ensures attendance of witness (failure is contempt of court)
    - file with court 2 copies of separate summons for each witness + court fee + expenses for witness (conduct money - ordinarily max £67 for loss of time for over 4 hours)
    - subsidence and overnight stay monies also payable
    - summons is issued by court
    - must be served on witness at least 7 days before trial date
  87. 87What is the trial bundle?- contains all documents the advocate will refer judge to
    - information about parties
    - statement of case
    -schedule of issues
    - key disclosure
    - expert evidence
    - agreed by both parties
    -claimant's solicitor prepares at least 6 copies for trial and claimant bears expense
    - filed 3-7 days before trial date
  88. 88What is the normal trial process?- claimant opening submissions
    defendant opening submissions
    - claimant presents witnesses, examination in chief
    - claimant's witness cross-examined by defence
    - claimant may re-examine
    - claimant presents experts, with cross-examination and re-examination as for
    - defendant presents witnesses and experts same process)
    - claimant closing submissions
    -defendant closing submissions
  89. 89Are leading questions allowed?Only during cross-examination ( not re-examination)
  90. 90What are the two grounds of appeal?1. The decision is wrong in fact, law, or the exercise of the court's discretion
    2. The decision is unjust because of serious procedural or other irregularity in the proceedings
    What is the time limit for making an application to appeal? 21 days from the date the judgement or order is handed down
  91. 91What is the process if permission to appeal is refused?Within 7 days of service of the court order, the appellant can request an oral hearing regarding permission.
    If not granted following oral hearing, the party has 21 days form refusal to make a written application to the court that will hear the appeal
  92. 92Can the 21 day time limit for applying to appeal be extended?Yes - extension must be sought from the judge
    If 21 days expires and no extension is sought, the party can seek permission from the Court of Appeal in a retrospective application- treated as an application for relief of sanctions
  93. 93What factors does the Court of Appeal consider in an application for permission for appeal after the 21 day period has expired with no extension?1. The seriousness and significance of the failure to comply with the rules
    2. Why the default occurred
    3. Evaluation of the circumstances of the case
  94. 94What evidence is allowed on appeal?- review of the decision only
    - no new evidence without permission
  95. 95What is the indemnity principle (costs)?A party cannot recover more from an opponent that they are liable to pay their own legal representatives.
  96. 96What is the standard basis for costs?Proportionate costs only
    Doubt is exercised in favour of the paying party
  97. 97What is the indemnity basis for costs?- used as a sanction for misconduct by paying party
    -doubts exercised in receiving party's favour
  98. 98In multi-track, when must costs budgets be exchanged?- if <£50k, with Directions Questionnaire
    - if £50k or more, 21 days before first case management conference
  99. 99Can a costs budget be exceeded?- some leeway (no more than 20%; or
    - with permission of court
  100. 100When is summary assessment of costs applied?- lower value cases and interim applications
    - file statement of costs 24 hours before hearing or 2 days before trial
    - summary assessment made at conclusion of hearing
  101. 101When is detailed assessment of costs applied?- higher value cases of greater complexity
    - hearing will take place months after main action
  102. 102Are costs usually awarded on the small claims track?Can recover claim form issue fee and a fixed amount for time in attending court.
    Usually no legal costs except fixed costs for :
    - lower value road traffic accident claims
    -small claims cases or money claims
    - low value employer liability
  103. 103Are costs awarded for fast track cases?- fixed costs for time at trial itself
    - costs for preparation for trial not fixed
  104. 104What is the time limit for serving a detailed bill of costs?3 months from judgement or order
  105. 105What is the time limit for disputing points in a bill of costs?21 days from being served with bill of costs
  106. 106What is the deadline for challenging a provisional costs assessment?21 days
  107. 107What is the standard time for payment of a costs award?14 days from the final costs certificate
  108. 108Who can make an application for security for costs?The defendant only
  109. 109What is qualified one-way costs shifting?In personal injury claims, a claimant who loses does not pay defendant's costs UNLESS
    - the claim was fundamentally dishonest
    - the claim was made for financial benefit of another
    - the claim was struck out for disclosing no cause of action or abuse
  110. 110What is a wasted costs order and who pays?Awarded if
    - the legal representative has acted improperly, unreasonably, or negligently
    - the conduct caused unnecessary costs, and
    - it is just to make the order
    The legal representative pays
  111. 111What is a Part 36 offer?A formal offer to settle a claim
    - without prejudice
    - can be made at any time, even before proceedings
    - must specify amount that party would be prepared to accept or pay to settle
  112. 112What are the requirements for a Part 36 offer?- in writing
    - state clearly made pursuant to PPR Part 36
    - specify period (min 21 days) in which offer cannot be withdrawn
    -state whether offer relates to whole or part of claim
    - state whether takes into account any counterclaim
  113. 113What are the costs sanctions if a claimant rejects a defendant's Part 36 offer and fails to beat it at trial?-The court will award the defendant costs on the standard basis from the date when the relevant period for acceptance expired.
    -Interest may also be awarded.
    -Claimant must also pay own costs from expiry of relevant date
  114. 114What are the costs sanctions if a defendant rejects a claimant's offer and the claimant beats that offer at trial?- Interest on the full claim at up to 10% above base rate
    - Costs for period after expiry of the relevant period on an indemnity basis
    - enhanced interest on those costs of up to 10% above base
    - additional damages
  115. 115What additional damages may be awarded to a successful claimant where the defendant rejected a lower Part 36 offer?Damages or mixed claims
    - 10% up to £500,000 or
    - 10% for the first £500,000 and 5% above that
    Non-monetary claims
    - 10% of the costs up to £500,000, and
    - 5% of any costs above £500,000
    - capped at £75,000
  116. 116What interest is payable on High Court judgements?8% per annum
    - from the date of the judgement
    - in addition to the interest on the value of the claim, which runs to the date of judgement
  117. 117What judgement interest is payable on County Court judgements?No interest on judgements under £5,000 unless contractual
    8% per annum on judgements of £5,000 or more
  118. 118How can a judgement creditor seek to enforce a judgement debt?Apply to the court for an oral examination order
    - order to be served on debtor personally no less than 14 days before hearing
    - creditor must file affidavit no less than 2 days before hearing
    - officer of the court questions debtor about assets under oath
  119. 119List 4 methods of enforcement of a judgement debt1. Taking control of goods
    - Writ of Control from High Court or
    - Warrant of Control from County Court
    2. Third-party debt orders
    - eg. against a debtor who has money in the bank
    3. Charging order on land
    4. Attachment of earnings
  120. 120What is the procedure for taking control of goods?- provide debtor with no less than 7 days notice of creditor's intention to take control of goods
    - agent may only enter stated address
    - agent must provide inventory of any goods seized
    - goods must be sold within 7 days

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SQE Civil Law Fichas sobre Dispute Resolution, creado por Emma Hodge el 21/06/2022.
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Emma Hodge
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