Dispute Resolution - Memory

What is litigation?

A process where a judge in a court of law decides the outcome of a case on the balance of probabilities.

What is arbitration?

A process where an impartial independent third party, known as an arbitrator, decides the outcome of a dispute between two or more parties.

What is mediation?

A confidential process to facilitate the resolution of disputes through an impartial third party, known as a mediator.

Who is the third party in litigation?

The judge.

What is the limitation period for personal injury claims?

3 years from the date of action or date of knowledge (s11).

What is the limitation period for fatal accident claims?

3 years from the date of death or date of knowledge of the dependent (s12).

What is the limitation period for contribution claims?

2 years from the date of the judgment on the first party or the date on which the amount to be paid is agreed (s10).

What is the limitation period for latent damages in negligence claims?

6 years from the action, or 3 years when having knowledge and right to bring a claim; maximum 15 years from the latest act causing damage (s2).

What is the limitation period for judgment enforcement?

6 years (s24).

What is the limitation period for tort claims?

6 years (s2).

What is the limitation period for contract claims?

6 years (s5).

Identity of the parties

• Full name of the party & title

• Mr stephen james smith

Claims Against Partnership

Against Partnership

• Were partners AND

• Carried on the partnership business at the time the cause of action accrued

Claims must be brought against the name under the partnership

• The full name for a partnership

• Or full name of each partner being sued as individual

• E.g. flagstones (a firm) and/or (1) john flagstone (2) nisha katon

If dissolve before proceedings → against former partners

Against sole traders

• Both the individual and trading name

• John flagston (trading as john’s cafe)

Against LLPs

• Separate legal entity

• E.g. flagstones LLP

Against companies

• Full registered name

• E.g. rockstone Limited

Against trusts and deceased persons

• Against trustees, executors or administrators

Deceased person with an interest in a claim without PR

• Claim proceed without PR OR

• Person to be appointed to represent the estate of the deceased

Defendant against claim has died

• If grant of probate not made

  • Claim against the estate of the deceased AND

  • Apply to court for an order appointing a person to represent the estate of the deceased in the claim

• If grant of probate is made

  • Against the PR of the deceased

Child and protected party

• Any under the age of 18

• Any person lacks capacity to conduct proceedings by Mental Capacity Act 2005

  • Impariment of the brain or mind 

  • Unable to make decision in question

How the court address the issue of incapacity as a party to the proceeding

• 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 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

• Assessed and reported by the party’s GP

• Issue and serve a claim form to sue the child or protected party

Definition of litigation friend

Fairly and competently conduct proceedings on behalf of the child or protected party

criteria

1. No adverse interest to threat of the child or protected party AND

2. Child or protected party is a claimant - undertakes to pay any cost which the child or protected party may be order to pay about the proceedings

   • Subject to any right to be repaid from the assets of the child or protected party

Appointment of a litigation friend

• Relative or the court appoint

• Certificate of suitability 

• Court may permit the child to conduct a proceeding wihtout a litigation friend

Service on children and protected parties

• E.g. Alice Brown (a child, suing by Kate Brown her mother and litigation friend)

• Adam Black (a protected party by Clara Dunn his litigation friend)

Aims of the Pre-Action Protocols

encouraging the parties to focus on resolving the dispute without involving the courts

Aims of the Practice Directions

• Set a standard of behaviour for parties to follow in all cases

• Collaborate and communicating with each other

• Intend to admit liability and do so early

• Avoid proceedings; silence is unreasonable

Consequences of incompliance to pre-action conduct

• Cost and interest related order

  • increase the cost / interest

  • decrease the amount to be received

• Court may stay the proceedings until steps are taken

• Can apply for extension of limitation period - in time application - if minor

Process to determine which country law apply to contract claim

1. Have the parties chosen which law to apply?

2. Contract relate to cases in Articles 4(1)(a) to (h)?

   • Sales of goods = seller habitual residence

   • Provisions of service = provider habitual residence

   • Land contract = where the land is

   • Distribution contract = distributor habitual residence

3. Outside of Rome1 = characteristic performer habitual residence

4. Apply a different country law; if Manifestly more closely connected to

Process to determine which country law apply to tortious claim

1. Have the parties chosen which law to apply?

2. Claimant and defendant reside in the same country?

   • Yes → the country law applies

   • No → apply the law where the damage occurs

3. Apply a different country law; if Manifestly more closely connected to 

Allocation of claims

• <100k = county court; > 100k = high court

• PI <50k = county court; > 50k = high court

Criteria for allocation

• Value of the claim

• Complexity 

• Public Importance

What is a claim form in the context of issuing proceedings?

A claim form is a formal document filed with the court that starts the legal process.

What is Form N1?

Form N1 is the specific claim form that must be filed to initiate legal proceedings.

Who must receive a copy of the claim form when issued?

The court, every defendant, and one copy for the claimant.

What does CPR 19 pertain to?

CPR 19 concerns the adding, removing, or substituting of parties in legal proceedings.

What is the ‘desirable test’ regarding adding or substituting parties after the limitation period?

The court will consider if the rights of the parties may be affected by a decision in the case.

What must be obtained before serving the claim form if adding a defendant?

No specific permission is required to add any party as a defendant before serving the claim form.

What is necessary after the claim form has been served when adding a party?

Always need court permission and the amending party will pay the cost of the amendment.

When can a new cause of action be added after the limitation period?

If it arises from the original claim's facts and there is an original set-off or counterclaim.

What conditions allow for adding parties post limitation?

Correcting a party's name, changing capacity or identity of a party, and making necessary amendments.

What is a necessary test for adding a party post limitation?

The new party must substitute for a mistake in the claim form or if the original party has died or bankrupted.

What qualifies as a genuine mistake in identifying a party?

A situation where there is no reasonable doubt to the identity of the party, and adequate descriptions cannot be provided.

General amendments to statements of case

Who serves the claim form within the jurisdiction?

The claim form is served by the court using first class post.

How is the claim form served by the firm?

The firm must file a certificate of service within 21 days of the claim form.

What are the methods of serving a claim form?

1. personal service,

2. leaving at the address or the defendant's solicitor's address,

3. first class post,

4. DX,

5. fax or email (if the defendant agrees to accept it).

What is the time frame for serving a claim form after the date of issue?

The claim form must be served within 4 months from the date of issue.

What is the first step in serving a claim form outside the jurisdiction?

Apply to the court to serve proceedings outside the jurisdiction.

What is a jurisdictional gateway ?

A legal ground for establishing whether a court has jurisdiction over a case.

What contract conditions can establish jurisdiction for serving outside?

1. The contract must be made in the jurisdiction,

2. governed by English law,

3. contain a term regarding jurisdiction,

4. or involve a breach of contract in the jurisdiction.

What tort conditions establish jurisdiction for serving outside?

1. Damage was or will be sustained in the jurisdiction or

2. from an act committed in the jurisdiction.

What must be shown for a claim to be served outside the jurisdiction?

1. jurisdictional gateway

2. reasonable prospects of success

3. England and Wales must be the proper place to bring the claim.

When is permission not required to serve a claim form outside the jurisdiction?

When there is a Hague Convention or a contract containing a term that states the court of England shall have jurisdiction.

What forms are filed when serving outside the jurisdiction?

File Form N510 and the claim form without permission; or File Form N244 for interim application with court permission.

What methods can be used to serve a claim form outside the jurisdiction?

• Service according to an agreed regulation, convention or treaty

• through the government of the destination country,

• or by any method permitted by the law of the destination country

  • local advice and local agent

Deemed date of service - claim form

second business day after the relevant action

Deemed date of service - POC - instant method

same day if served before 1630 of the business day

Deemed date of service - POC - non instant method

second day after posting if it is a business day, or the next business business day

Alternative service

• Only if there is a good reason to do so

• Other available methods of service ineffective or impossible

  • Make an application to the court - why service are not possible

  • Why attempts to service have been unsuccessful

• Court may order steps taken = good service

Common law jurisdiction

1.  present in jurisdiction - can be served proceeding

   1. Even if D is foreign D

   2. Even if subject matter is based in another jurisdiction

2. Court give permission to serve proceeding on D outside jurisdiction

3. Court of england and wales are given jurisdiction by a clause in contract

Admitting the claim

If D does not wish to dispute or no defence to the claim

• Form 9A - specified claim

• Form N9C - unspecified claim

Submit the form in 14 days of the DDS of POC

Admitting unspecified claim

• May admit liability to pay the whole claim 

  • Court judgment for an amount to be decided later by the court and costs

• Offer a sum in satisfaction of the claim

  • One party is a child or protected party

    • Judgment against the D for any amount offered in satisfaction

• Claimant request for judgment

  • Court enter judgment on liability with quantum AND cost to be decided at a later hearing

Requesting time to pay

• D to pay by certain date or by instalments

• Include the reason of inability to pay immediately

• Court will determine the rate of payment if claimant reject

Amount of judgment - specified claim

• Amount and interest to the date of issue of the claim

• Interest since the date of issue - daily rate from the particulars of claim

• Court fee

• Fixed cost - an amount of fixed costs and additional amount on entering judgment

Amount of judgment - unspecified claim

• Judgment on liability only

• No amount of damages recorded

• Subsequent hearing

  • Evidence → issue of quantum and judge will hand down a judgment recording

timing of acknowledgement of service

• 14 days after service of POC / claim form

  • Form N9

• Extension of further 28 days upon agreement of both parties → notify the court in writing

timing of defence

28 days afters service of POC / claim form

Admitting / denying the claim

• Adopt the definition used in the POC

  • Paragraphs 1 to 6 of the POC are admitted 

  • D is unable to admit or deny paragraphs 8 - 10 of the POC

disputing the court’s jurisdiction

• File acknowledgement of service - check the box to contest jurisdiction

• Apply in 14 days after the acknowledgement of service - disputing the jurisdiction supported by evidence

Reply

• optional statement of case

• Allege facts to the defence not included in the claim 

• Filed with the directions questionnaire

  • Parties are given at least 14 days notice of the deadline

• Last statement of case in a claim

  • Permission of court is needed to file any statement of case

Entering and setting aside judgment in default

• After 14 days of POC, the claimant can apply for judgment in default if the deadline expires without defence submitted

• Procedural - judgement granted without a trial

Conditions to obtain default judgment

• Time has expired for filing an acknowledgment of service or defence 

• Claim has not been satisfied by the D

• No application for summary judgment or strike out by D

Procedures for entering judgment in default

• Specified sum - decided on paper

  • Court will make judgment for the amount sought, cost and interest accrued

• Unspecified sum - decided on paper

  • Court set a timetable for a hearing to decide the sum

• Non money claim

  • Claimant apply for default judgment hearing

  • Court decide why default judgment and what judgment should be given

Test to set aside default judgment

• Judgment wrongly entered - court must set aside

  • E.g. summary judgment or strike out applied before the judgement was entered; defendant has satisfied the claim 

• Judgement correctly entered - court’s discretion 

  • D has a real prospect of success

  • Some other good reasons for D to defend 

• Relief from sanction

  • Denton test

    • Whether the fault is serious or significant

    • Why the fault occurred

    • Consider the overall circumstance of the case

Discontinuance and settlement

• Only claimant can discontinue; paying Ds cost up until the day of discontinuance unless court order otherwise

1. File a notice of discontinuance at court - which part of the claim

2. Serve a copy to every party

3. Effective on the date of service

4. Cost order is deemed to have been made for defendant on standard basis 

time limits for responding to a claim

• 14 days after claim form or POC

  • Defence or acknowledgment of service

• 28 days after claim form or POC with acknowledgement of service

• Further 28 days upon agreement of both parties, notice to court

Purpose and structure - claim form

• Purpose

  • Set out basic information of the claim

  • Define the scope of the dipsute

  • Stop the limitation period

  • Serve on the defendant and allow the knowledge and defence

• Structure

  • Full name / company number

• Bundle content

Purpose and structure - POC

• Purpose

  • Set out the fact of the claim

• Structure

  • Heading

  • Parties

    • First 2 paragraphs

  • Duty

    • Contract

      • Express term

      • Implied term

  • Breach

    • In breach of XXX terms of the XXX

    • PARTICULARS OF BREACH

  • Causation

    • As a result of the breaches

  • Loss

    • PARTICULARS OF LOSS AND DAMAGE

  • Interest

    • The claimant claims interest on such damages as awarded to it pursuant to section 35A Senior Courts Act 1981, at such rate and for such period as the court thinks fit

  • Prayer 

    • AND THE CLAIMANT CLAIMS:

      • Damages under paragraph xx and

      • Interest under paragraph xx

  • Drafter

  • Statement of truth

  • Signed and dated

• Bundle content

Structure of Defence

• Heading

• Standard

  • The Defendant adopts the definition used in the Particulars of Claim

• Body

  • Paragraphs 1 to 6 of the Particulars of Claim are admitted

  • The Defendant is unable to admit or deny paragraph 7 and the Claimant is required to prove the matters stated.

• General denial

  • In the circumstances, the Claimant is not entitled to relief sought or any relief

• Drafter

• Date 

• Statement of truth

purpose, structure and content - reply

• Purpose

  • Allege facts in answer to the defence not included in the claim

• Structure

  • Headings

  • Standards: the claimant adopt the definitions used in the defence

  • Body

    • Responding to each point of reply

  • Drafter

  • Statement of truth

  • Date and signed

purpose, structure and content - Part 20 claim - COUNTERCLAIM

• Purpose

  • Further or alternatively, if contrary to this Defence, the Defendant is held liable to the Claimant, the Defendant seeks to reduce the Climant‘s claim by setting off the sum counterclaimed below.

• Structure

  • Body

    • Duty

    • Breach

    • Causation

    • Loss

  • PARTICULARS OF LOSS AND DAMAGE

    • [item], date, amount and total

  • PARTICULARS OF INTEREST

    • The Defendant is entitled to and claims interest on the sum of XX

    • Pursuant to clause xx from XX

    • At the rate of 8% per annum in the total sum of xx

    • From today’s date until judgment or earlier payment at a daily rate of £XX

  • Drafter

  • Statement of truth

  • Signed and dated

purpose, structure and content - Defence to Part 20 claim - COUNTERCLAIM

• Defence against counterclaim

• Usual 14 days rules if not → judgement in default might be entered

• Structure

  • Headings

  • Standard : the defendant adopt the definitions used in the Counterclaim

  • Body

    • Responds to each point one by one 

• Drafter

• Statement of truth

• Dated and signed

Structure of Requests for further information about statements of case part 18 request

• BETWEEN

• Title: CLAIMANT’S CPR PART 18 REQUEST OF THE DEFENDANT DATED 25 JANUARY [THIS YEAR]

• INTRODUCTION

  • This is a request pursuant to Part 18 of the Civil Procedure Rules

  • This request is made by the Claimant to the Defendant 

  • This request relates to the Defence served on 20 January [this year]

  • This request is made and served on 25 January and D’s response is expected by 8 February

• REQUESTS

  • The request origin

    • Paragraphs of which documents e.g. POC

  • Request 1

  • Request 2

  • Request 3

• Dated 

Interim Applications for order or direction

• In the interim period between the commencement of proceeding and trial

• Some can be made before commencement of proceedings

• Examples

  • Extending time limit to file a defence 

  • Apply to amend a statement of case

  • Request the other party to provide further information

  • Request specific disclosure 

  • Seek permission to rely on expert evidence

• Can be made by any party

When to make an interim application

• Necessary or desirable to make an application

• Parties should be reasonable and agree matter before going to court

• Make the application less contentious

• Applications are usually dealt in the CMC, or pre trial review 

• Overriding objective

  • Ensure all interim application can be processed in one hearing if possible

Procedure of interim application

1. Issue

2. Service

3. Further evidence

4. Hearing

Interim application - Evidence, draft order and issue

• Application is advisable to be supported by evidence

  • Even if it is not strictly required

• 3 ways to give evidence

  • Application notice - with statement of truth

  • Referring to existing statements of case

  • Witness statement

• Should draft order at court settign out teh terms

• Court will issue the application and provide a notice for hearing

  • Date and time

Interim application - Serving the application

• Application notice with the date and time of hearing

• Evidence and draft order must be served on the other party after application notice

• Court may serve the notice

  • Usually applicant solicitor

• Serving as soon as practicable after filing the application AND

  • At least 3 clear days before the application hearing 

without notice application - interim application

• Only permitted if

  • Exception urgency

  • Overriding objective is further by without notice

  • All parties consent

  • Court gives permission

  • Court order, rule or pratice direction permits

  • Fix the date for a hearing

    • No time to serve an application notice

• Procedural safeguards - mitigate the risks of unfairness

  • Application must explain why no notice

  • Draw court attentin arguments and evience without respondent position

  • Applicant mst serve the respondent ASAP after the hearing

    • Application notice

    • Evidcen in support

    • The order

  • Court order contain a statement for respondent right to set aside the order

    • Must make in 7 days after the order is served

Purpose of Summary Judgment

• Enable the court to dispose of claims or issues without full trial

• Save cost

• Further overriding objectives

  • Deal with weak cases or issues proportionately and expeditiously

• Either party can apply for summary judgement 

  • If think the other party position is sufficiently weak

Difference between summary judgement, strike out and default judgmen

• Strike out

  • No reasonable grounds for the claim 

  • Abuse of process of court

  • Likely to obstruct the just disposal of the proceedings

• Summary judgment

  • Party has no real prospect of success

• Default judgment

  • D fail to respond to a claim

  • Procedural 

  • No need to consider merit of the case

Grounds for summary judgement

1. Claimant / defendant has no real prospect of success

   1. Position is fanciful, imaginary or false

   2. Less than merely arguable

2. No other compelling reason why the case or issues should be disposed of at trial

   1. Compelling reasons

      1. D needs more time to investigate

      2. Expert evidence required

      3. Multi party litigation

      4. Scrutiny of key documents required

      5. D has a right to trial by jury

Who can apply for summary judgement and when

• Claimant 

  • After D filed acknowledge of service or defence

  • OR Earlier with court permission

• Defendant

  • Apply anytime after proceedings have commenced

• Court 

  • Fix hearing of its own initiative

• Ideally apply for summary judgement before or at the same time as filing the directions questionnaires 

  • Avoid unncessary cost

  • Court can delay allocation after a summary judgement hearing

Summary judgement timing

# serving notice at least 14 days before the hearing

## respondent further evidence at least 7 days before hearing

### applicant reply with further evidence at least 3 days before hearing

#### statement of cost at least 24 hours before hearing

Interim payments

• Payment on account of damages, debt or other sum (not cost)

• D liable to pay the claimant

• Claimant ask for an interim payment for financial assistance

  • Before settlement or trial 

• Made by claimant only

Interim payments - grounds

1. D admitted liability to pay damages to claimant

2. Claimant obtained judgement against D for damage to be assessed

3. If C went to trial - C would obtain judgment for substantial amount of money against D from whom seeking an order for an interim payment

procedure to apply for interim payment

1. Request D for a voluntary payment 

   1. If not agreed

2. Make a court application for an interim payment

   1. Claimant cannot ask for interim payment before the period for filing acknodwlegdement of service 

   2. Can make more than 1 application for the order

3. Court must not make an interim payment more than a reasonable proportion of the likely amount of the final judgement

   1. Consider any contributory negligence, set off or counterclaim

Security for costs

• Made by Defendant 

• Claimant will not pay D’s cost should the claim be successfully defended

• Payment into court by claimant 

  • Avaialble to meet any cost order later 

  • ONLY about the costs of the claim NOT damage

• D → claimant - usual claim

• Claimant → D - counterclaim

• Third party against D - additional claim

Security for costs - grounds

1. Regard all ciurcusmatnces of the case - just to make the order

AND

1. One or more prescribed conditions are satisfied

2. Prescribed conditions

   1. Claimant is resident out of the jurisdiction NOT bound by 2005 Hague Convention

   2. Claimant is a company, a reason to believe it will be unable to pay the cost 

   3. Claimant has taken steps to move the assets - make enforcement difficult

3. Other grounds

   1. Claimant changed address since the claim

      1. Evade the consequences of the litigation

   2. Claimant failed to give an address in the claim form

   3. A reason to believe it will be unable to pay D’s costs if ordered

Security for cost - court discretion

• Court is not obliged to give security even if one condition is made out

• Only grants if

  • It is just to make such an order

• Main consideration for JUST

  • The ability of the respondent to comply with the order for security for costs

  • Should not make the continuation of claimant claim dependent on the condition claimant impossible to fulfill - restrict access to justice system

• Other considerations

  • Admission of liability by D and substantial open offer

  • Delay may make the application less likely to succeed 

  • Appears not to be genuine or little prospects of success