Intro to Dispute Resolution, Pre-Action Consideration and Parties to Proceedings

Examples of Disputes

* Breach of Contract
* Negligence
* Personal Injury
* Property Disputes
* Custody
* Divorce
* Judicial Review

Structure of a Civil Dispute

* Pre-Action
* Statements of Case
* Case Management
* Evidence
* Trial
* Post-Trial

Overriding Objective under CPR 1.1

“to enable the court to deal with cases justly and at a proportionate cost”

Who must give effect to the overriding objective?

The court (under 1.2) and the parties under (1.3)

Usage of Welsh Language in Court

Is possible where the court is adequately prepared to hear the case and has translation facilities and all parties and witnesses consent, the judge will then also be a Welsh speaking judge where practicable

Disbursements

Payments to a third party by your solicitor

General Rule regarding paying opponent’s costs

If you lose the case, you will likely be ordered to pay the opponent’s costs

Court’s Discretion to order a party to pay another’s costs

The court has discretion to make such an order based on:

* Reasonableness
* Proportionality
* Conduct of the Parties

Types of Legal Costs

* Private Retainer/ Payment
* Conditional Fee Agreements
* Damages based agreements
* Fixed fees
* Civil Legal Aid
* Third Party funding
* Legal Expenses Insurance

Types of Legal Expenses Insurance

* Before the Event Insurance
* After the Event Insurance

Case Analysis Structure

* Duty
* Breach
* Causation
* Loss
* Parties
* Limitation

When should case analysis occur?

Before and especially during the case to account for any case law, changing facts and evidence and any potential settlement

Standard of Proof in Civil Cases

On the balance of probabilities

Res Ipsa Loquitur

The facts speak for themselves - the thing could not have happened if it had not had been for mismanagement/ negligence

Inferences of Fact

Common sense conclusions drawn from primary facts

Limitations for Personal Injury claims under s11 Limitation Act 1980

Within 3 years of the latest of:

* The date when the cause of action accrued; or
* The date of knowledge of the person injured

Limitations for Fatal Accidents under s12 Limitations Act 1980

Claim cannot be brought after 3 years from the later of:

* Date of victim’s death
* Date of knowledge of the defendant

Date of Knowledge under s14 Limitation Act 1980

Means knowing:

* That the injury was significant
* That it was attributable (at least in part to the alleged wrongdoing)
* The identity of the defendant
* May also include knowledge which the claimant might reasonably have been expected to know via an expert/ facts observable or ascertainable to them

Extensions of Time under s33 Limitations Act 1980

Court can extend in relation to personal injury claims under the Fatal Accidents Act if equitable and will look at:

* Conduct of the Parties
* Reasons for the Delay
* Effect of such a late claim on the evidence

Contribution

Where a person liable for damage can claim a contribution from another person

Limitation for Tort Claims under s2 Limitation Act 1980

The limitation period expires 6 years after the date on which the cause of action accrued

Limitation for Contract Claims under s5 Limitation Act 1980

Expires six years after the date on which the cause of action accrued

Disability under s28 Limitation Act 1980

If the claimant is under a disability at the time the cause of action accrued, the limitation period will run from when this ends and is:

* 2 years in relation to contribution claims
* 3 years in relation to personal injury or fatal accident claims
* 6 years in most other cases

Fraud/ Concealment or Mistake under s32 Limitations Act 1980

Limitation does not start to run until the claimant discovers the fraud, concealment or mistake or could with reasonable diligence have discovered it

Claims for/ against Deceased Persons

Are to be managed by their estate/ representatives

Children and Protected Parties

Cannot pursue claims on their own behalf and therefore must be represented by a Litigation friend

Test for lacking mental capacity under Martin Masterman-Lister v (1) Brutton & Co (2) Jewell & Home Counties Dairies

* Can the person recognise the problem they encounter?
* Can the person explain with sufficient clarity the problem to those from whom they seek appropriate advice?
* Can the person understand and evaluate the advice received from an appropriate source?
* Can the person understand the effects of choosing one course of action over another and give effect to their chosen course through instruction?

Litigation Friend

Acts on behalf of a child or protected party during litigation

Who may act as a litigation friend under CPR 21.4(3)?

* Someone who can fairly and competently conduct proceedings on behalf of the child or protected party
* Someone with no adverse interest to the child or protected party
* Someone who undertakes to pay any costs incurred subject to repayment for them child or protected party’s assets

Appointment of a litigation friend

Can be made by court order of by serving a certificate of suitability satisfying the criteria in CPR 21.4(3)

CPR 21.2(3) Court order for no litigation Friend

The court may make an order permitting a child to conduct proceedings without a litigation friend

Service on Children and Protected Parties under CPR 6.25

Any document due to be served on a child or a protected party must be served on the litigation friend

Settlement for a Child or Protected Party under CPR 21.10(1)

Regardless of whether the claim is for or against the child or protected party, any settlement, compromise, payment or acceptance must be approved by the court

Control of Monies recovered by a child or protected party under CPR 21.11(1)

Must be dealt with in accordance with the court’s directions, whether invested in the Court of Protection, in another fund or paid directly to a trustee on behalf of the child or protected party