FLK1 - disputes (copy)

What courts are not court of first instance?

Supreme Court and Court of Appeal only hear appeals

How many divisions of the County Court are there?

None

3 subdivisions of High Court

• Chancery & Kings Bench Division & Family Division 

Components of KBD?

General

Administrative (JR)

Planning

Commercial (complex business disputes)

Circuit

Technology and Construction

Admiralty

Components of Chancery?

Insolvency list

Revenue list (taxation)

Competition list

Business list

Property, trusts + probate list

IP list

Rights of audience?

Solicitors can carry out advocacy in; Magistrates + County court + (Appeal) Tribunals

NOT authorised for Higher Courts (High Court/Appeal Court/Supreme Court)

• Could obtain ‘Higher Rights of Audience’ 

Titles for different judges

CC district + deputy district = Judge

CC Recorder and Circuit Judge = Your Honour

HC Master = Judge

HC Judge = My Lord

Same for Appeal and SC

What is the overriding objective?

‘ENABLE COURT TO DEAL WITH CASES JUSTLY + AT PROPORTIONATE COST’

Parties must help court further it

• Ensuring parties on an equal footing. 

• Saving expense. 

• Dealing with case in ways proportionate to money involved + importance + complexity + financial position of parties 

• Ensuring case dealt with expeditiously and fairly. 

• Allotting appropriate share of court’s resources, factoring in other cases

• Enforcing compliance w/ rules/PDs/orders

Meaning of vulnerable people re disputes?

• ‘Vulnerable’ = factor may adversely affect their participation 

• Could be age/language barrier/cultural circumstances/physical etc.

Court will take proportionate measures to identify vulnerability + give directions/make provisions to facilitate participation 

Standard re disputes?

• BALANCE OF PROBABILITIES. More likely than not?

Re disputes, when can things be established even if no evidence?

• Formal admissions

• Presumptions (where res ipsa loquitur, or facts speak for themselves)

  • Where thing under management of D, and accident such that wouldn’t happen under proper care, this affords reasonable evidence that accident arose from want of care. SELF-EVIDENT

     

• Inferences of fact (common sense conclusions drawn from primary facts)|

General rule re costs

• POWER = court has broad discretion to decide a) if A pays other’s costs and b) how much

• GENERAL RULE = unsuccessful party pay costs of successful one = COSTS FOLLOW THE EVENT, so loser pays

Inter-party costs?

actual figure for costs awarded by court 

Solicitor-client costs ?

= costs under retainer. Will probably have to dip into own pocket. 

Non-party costs?

against 3rd party (e.g. funder). Pretty unusual, but court will ask whether if its just. If 3rd party substantially controls/benefits from proceedings, they will pay successful party. 

Bases of cost assessment?

When making order, will specify ‘basis of assessment’. 2 options; 

STANDARD BASIS = maybe recover 60% of costs

• Costs have been proportionately and reasonably incurred

• Are proportionate and reasonable in amount 

• Any doubt is resolved in favour of paying party 

INDEMNITY BASIS = bad conduct by parties. Maybe 70-80% of costs 

• Have been reasonably incurred 

• Are reasonable in amount 

• Any doubt is resolved in favour of receiving party
  

AT ANY RATE, will not be able to recover costs unreasonably occurred/unreasonable in amount

Proportionate = factor in sum at stake/complexity/wider factors e.g. public importance

Deadline for costs?

TIMELINE = unless court orders otherwise, must comply within 14 days of judgement/order

• If decided later, within 14 days of the relevant certificate; or any other date court orders 

Fixed costs vs assessed costs

Sometimes the amounts fixed by rules (unless court orders otherwise)

• Applies to; uncontested disputes; enforcement proceedings; and small claims 

VS ASSESSED COSTS = don’t fall under this regime, so court needs to get involved 

• Normally only happen when parties cant agree

Summary costs assessment?

Happens immediately at end of hearing. Parties prepare statement of costs (on standard form N260) and file + serve them not less than 24 hours before hearing

Court hears submissions, then makes decision

• In fast-track cases, happens at end of trial. costs of whole case assessed. 

• Or could take place at end of hearing of interim application/manner lasting under a day, dealing with just those costs 

Detailed costs assessment?

• Court, upon deciding one party should pay other's costs, orders that they be subject to detailed assessment. Makes no attempt to set figure on them.

• Receiving party serves notice of commencement + copy of its bill of costs on other

• Disputed points then served within 21 days of that

• If parties cannot agree, receiving should request detailed assessment hearing where costs officer will determine sum to be paid 

Costs in any event?

party in whose favour order is made is awarded its costs of hearing (regardless of who wins later)

Costs in the case?

 party who eventually gets costs at trial (normally winner) will also recover costs for interim hearing 

Costs reserved?

decision about who pays delayed. If no decision later, then ‘in the case’ (see above)

Claimant/defendant’s costs in the case 

= for CLAIMANT, if claimant successful and entitled to costs, then can include these costs. If defendant wins + awarded costs, claimant doesn’t pay defendants costs of interim. 

• FOR DEFENDANT, same in reverse 

Costs thrown away

Costs thrown away = if judgement/order set aside, party who benefits from this can recover costs incurred as result of it being set aside (potentially including at hearing where original orders was made). 

• Idea that shouldn’t have to pay for something that never should’ve happened.

Costs of and caused by 

party must pay for costs resulting from something it has done, e.g. amending particulars of claim 

No order for costs

 = each party pays for themselves 

Costs here and below

 party in whose favour cost order is made is entitled to their costs in that proceedings + costs in any other proceedings in lower court

• If appeal from divisional court, not entitled to any costs incurred in court below that

E.G. IF YOU APPEALED SOMETHING

Pre-action protocols?

Court sets out procedures that parties expected to follow before issuing proceedings, unless exceptional reasons not to do so 

Different types for different disputes + general ‘Practice Direction’ for all cases

• If specific protocol conflicts with general, then specific takes priority 

Consequences of non-compliance with Pre Action Protocol?

Consequence of non-compliance 

• Court decides whether non-compliance merits adverse consequences

• Will most likely relate to costs and interest, but could also stay until relevant steps taken

• Before imposing sanction, court considers overall effect of non-compliance. Can ask for explanation. 

When might non-compliance with pre-action protocol be justified?

• Where limitation period about to expire. In those circumstances, would comply to the extent possible (+normally need to apply for stay so that pre-action procedure can be followed)

• If another urgent reason/element of surprise, e.g. parties can apply for search order (if fear that other party will destroy documents)

4 rough key requirements of (normal) Pre-Action Protocols?

letter of claim setting out claim and attaching key documents;

letter of response within specified period;

attempt at ADR; and

stocktake before issue of proceedings

What if proceedings not commenced within time limit?

• claimant cannot recover damages + defendant has full defence

Time limits for PI claims?

• Must bring within 3 years of date when a) cause of action accrued or b) knowledge of person injured 

• ‘Date of knowledge’ defined in s14 as date of;

  1. Knowing injury was significant, and 

  2. That it was (partly) attributable to alleged wrongdoing, and

  3. Knowing identity of defendant, and

  4. (if alleged that wrongdoing was by someone other than defendant) knowing identity of that person + additional facts supporting bringing of claim against defendant 

ALSO, about knowledge of facts - NOT of whether they have enough info to bring claim

• Could also include knowledge which claimant might reasonably be expected to acquire from facts observable/expert etc. 

Time limit for fatal accident (dependents) claims?

people who were depending on them can claim compensation 

• Cannot bring claim if person injured could no longer bring claim, i.e. if they were still in time limit, have 3 years from death

• Claim cannot be brought more than 3 years after death/date of knowledge of dependent (again, defined according to s14), WHICHEVER IS LATER

EXTENSIONS = court can extend time (in both of above types of case) if would be equitable, balancing prejudice to claimant caused by limitation period with prejudice extension would cause defendant 

• Weigh up conduct of parties; reason for delay; and effect of late claim on the evidence

What is a contribution claim + time limit?

Some circumstances where person liable for damage can claim contribution from someone else

Limitation period = 2 years from date on which right to recover contribution arose. Date could be;

1. Date when judgement imposing liability on 1st party was given

2. Where 1st party agrees to pay, date on which amount to be paid was first agreed

Latent damage claim + time limit

Damage not immediately apparent + obvious on inspection.

Limitation period extended to later of; 

1. 6 years from when cause of action accrued, or;

2. 3 years from when claimant had requisite knowledge + right to bring claim

WHICHEVER LATER

+HARD STOP OF 15 YEARS from latest negligent act/omission 

Date of knowledge defined in same way as above, except must know ‘material facts about the damage’ (although again, if they know damage, doesn’t matter if they don’t realise they can claim)

• Same as above about knowledge might’ve been expected to acquire 

Time limit re enforcing a judgement

Action to enforce judgement cant be brought more than 6 years from when became enforceable, nor can interest be recovered after that period 

Time limit for tort and contract?

• General rule for tort is 6 years after date on which case of action accrued

Time limit re disabilities?

If claimant under disability at time of cause of action accruing, period starts to run when disability ends, and is;

• 2 years for contribution claims

• 3 years for personal injury/fatal accident

• 6 years for most other cases

If minor/lack mental capacity, they are under disability 

Time limits for minors?

Minor = ‘disability’, so time runs from when disability ends

Time limit re fraud/concealment/mistake?

If claim based on fraud, or any fact relevant to case of action has been deliberately concealed from them, or action for relief from consequence of a mistake;

• Limitation period doesn’t start until fraud/concealment/mistake was discovered (or could with reasonable diligence have discovered it)
  

Mediation

• Confidential process using impartial 3rd party mediator 

• Each party (with legal representatives) present in same location but different rooms. Mediator moves between rooms delivering offers.

• Mediator has no authority to make binding decision. 

• If no agreed resolution, content of mediation will remain confidential (not make known to court)

Arbitration

• Dispute resolved by impartial 3rd party adjudicator whose decision parties have agreed will be final and binding 

• Therefore both parties agree to oust jurisdiction of court 

• Long and formal process governed by rules and statute 

• Advantages = privacy’s easier enforcement, ability to choose specialist, flexibility 

• Issue of whether to arbitrate or not arises at;

  • Point where parties consider inclusion of arbitration clause in contract, or;

  • When dispute has arisen (no need for it to say anything in contract)

Med-Arb

Process where parties agree to try to resolve by mediation, but if doesn’t work, will move onto arbitration pursuant to which binding determination will be made

Conciliation?

• Independent neutral 3rd party helps resolve.

• Includes evaluation, like ENE.

• Often forms part of statutory or regulatory scheme (which might provide conciliator + process involved). Unlike mediation in this respect

Expert determination 

• Independent expert is appointed to determine dispute. Procedure determined by contract between the parties. 

• Suitable for technical knowledge, but issues of credibility and parties may not be fully heard

• Unlike appraisal, binding

Early neutral evaluation (ENE)/expert appraisal/ expert evaluation

• Process where independent party appointed, who then provides non-binding assessment. 

• Parties have to pay them for time and costs.

• Provides useful opinion which might influence future settlement discussions 

Reasons for using ADR

• Court expectations

• Better relationships between parties 

• Less expensive + saves time

• Greater privacy and confidentiality 

• Less disruptions to clients 

• Greater control over process

Almost all types of cases are suitable for ADR 

Can court compel party to engage in ADR?

No - although various Pre-Action Protocols/PDs require it to be considered.

AND DQs for Fast + Multi require require legal representatives to confirm they’ve explained to clients need to try settle, settlement options and possible costs sanctions. Also includes option to request stay for settlement. Have to expressly state why settlement might not be achieved if they do not require a stay. 

AND at case management conference, court will want to know what steps taken to explore ADR

Will court know about mediation engaged in?

Won’t know the substance, but will know if they agreed to mediate or not.

Effect of ADR refusal on costs?

If successful party in litigation refused ADR, court will consider if refusal reasonable - if not, might impose costs penalty. Burden on unsuccessful party to show why court should depart from general rule on costs so as to deprive successful party. Will look at;

• Nature of dispute (how suitable it is for ADR) 

• Merits of case (refusal more justifiable if case very strong)

• Extent to which other settlement methods attempted 

• Whether cots of ADR would be disproportionately high (unlikely)

• Whether delay in setting up ADR would be prejudicial 

• If ADR had reasonable prospect of success 

ALL OF ABOVE RELATES TO REFUSING TO ATTEND ADR WHEN INVITED - not when ADR wasn’t suggested at all 

What to do when receive ADR offer?

• Respond promptly in writing setting out reasons for decision

• Explain in what different circumstances it would engage in ADR

• Make letter ‘open’ or ‘without prejudice save as to costs’

Ways for court to encourage ADR?

At CMC, court has power to;

• Order stay for parties to explore ADR

• Can direct parties to consider ADR and require explanation of their thinking

• Can reinforce direction above by demanding parties not engaging in ADR serve witness statement giving reasons within 21 days (not shown to judge until issue of costs arise)

Action against partnership - name on claim form?

Must be brought against name which partnership carried on business at the time cause accrued, unless inappropriate (e.g. multiple name changes, so easier to bring against partner names)

• Easier to name full partners (esp. if partnership since dissolved)

Action against sole trader - name on claim form?

= against individual and trading name 

Can employee defend action against company?

Yes - company can be represented at trial by employee if employee authorised + court gives permission 

Action against trust - name on claim form?

• Can be brought by/against trustees, executors or administrators

• Don’t need to name beneficiaries as parties (though any order binding on beneficiaries, unless court directs otherwise)

Action against dead person - name on claim form?

If they have no PR, court could order that claim proceeds in absence of person representing the estate of the deceased. OR person appointed to represent estate 

• If grant of probate/administration been made, must bring against PRs

• If not, bring claim against ‘estate of’ and claimant must apply for court order appointing person to represent estate 

Want to bring action against dead person with will - who to sue?

• If grant of probate/administration been made, must bring against PRs

• If not, bring claim against ‘estate of’ and claimant must apply for court order appointing person to represent estate 

Can minor pursue case?

• People under 18/‘protected parties' cannot pursue claim on their own behalf 

• ‘Protected party’ = someone without capacity under Mental capacity Act 2005. By impairment or disturbance of brain/mind, unable to make decision in question at time it must be made 

• Adult presumed to have capacity unless contrary proved

How can minor pursue case?

WILL BE REPRESENTED BY ‘litigation friend’ (appointed with/without court order). Must be;

• Able to conduct proceedings on behalf, fairly and competently 

• Have no adverse interest to them

• Undertake to pay costs if acting for claimant (potentially subject to right to be repaid?)

Can be appointed without court order by filing + serving of certificate of suitability;

• Must show they satisfy above criteria 

• OR court of protection could appoint someone

• OR court could make order permitting child to conduct without litigation friend 

Service on children/protected parties

• Must be served on litigation friend, but child/PP referred to in documents 

When do you get choice of courts?

If over 100k and not for PI

Or if PI, 50k or more

When deciding where to issue claim, what does figure include?

Disregard interest, costs, counterclaims, contributory negligence + deduction of social security benefits from the above figure 

When must you claim in CC?

If 100k or less, or if less than 50k and PI

Claiming in HC?

Claim form in High Court must explicitly state that claimant expects to recover over 100k (or over 50k for pI)

Reasons for starting in High Court

• Financial value

• Complexity of facts/remedies/procedures etc.

• Importance of outcome of claim to public in general 

• Or could be specific enactment saying claim in HC

Where to bring libel/slander claim?

Only to HC

What happens if issue in HC but should’ve done in CC?

If issue in HC and should have been CC, discretion to issue penalty that any costs awarded can be deducted by 25%

Can you transfer between courts?

Transfer between courts possible = based on above criteria** + whether specialist judge available/facilities at court appropriate for disabled etc. 

• May transfer case and order claimant to pay costs of transfer

** = financial value/complexity/importance of outcome to public

Any claim relating to media and communications work - where to begin?

Can do either HC or CC, regardless of amount

How to issue claim at court?

Claimant’s solicitors must take/send following to court;

• Copies of claim form (N1) - one for court, one for claimant, one for every defendant 

• Court issue fee 

Relevance of date of issue of claim form?

stops limitation period clock running + starts clock for claim form 

• HC will stamp with date of receipt (relevant date) and create case management file 

• Same with CC

How to issue simple money claim under 100k?

If no more than 2 D’s, can do through Money Claim Online.

• Sign up for service and do online claim forms (still pay fee)

• Defendant can respond online.

• Then transferred to appropriate local CC hearing centre 

Bulk issue of claims by registered users - how to issue claims?

Issue through CC business centre

What is service?

Process of giving document to another party in way recognised by court 

• Can be served by court, or by claimant/claimants solicitor 

  COURT = send notice of issue via 1st class post, which states DDOS. If unable, claimant sent notice of non-service. From that point, up to them to try.

  CLAIMANT = must notify court they want to. Court gives issued claim form. Must file certificate of service within 21 days of service, unless claimant files acknowledgement. State date + method + address used.

Methods of service?

• Personally on defendant (or appropriate person if company etc.)

• Leaving document at permitted address (regardless of if someone present there)

• First class post 

• Document exchange (DX) 

• Fax (only if defendant indicated will accept this way)

• Other electronic method e.g. email (only if defendant indicated will accept this way)

• Any other method authorised by court 

Describe service at permitted address/fax/email?

• Leaving document at permitted address (regardless of if someone present there)

• Fax (only if defendant indicated will accept this way)

• Other electronic method e.g. email (only if defendant indicated will accept this way)

Personal service?

Can be used anywhere within jurisdiction. If D gives solicitor’s address, must use that.

Otherwise, use residence/where they carry on business.

LLP/Company = any place of business within jurisdiction which has real connection with the claim

Time limit for service

Time limit for serving claim form after it’s issued

‘Relevant step’ must be taken before midnight on calendar day 4 months after date of issue

• Relevant step = leaving it with them/posting it to them/completing transmission/sending email

If not served within limit, will fail automatically - need new claim form + pay fee again  

Extension of time limit for service

• Need to claim within 4 month period + show good reason

• Waiting for evidence/response to pre-action correspondence/mistakenly seeing insurers or solicitors instead of D, probably not good reasons 

• Alternatively, could get after 4 months if it was court that failed to serve claim form/claimant taken all reasonable steps to comply and application taken promptly 

Serving PoC - how?

Same ways as service of claim form.

If with claim form, attach response pack N9 (ALWAYS WITH PoC)

If not, serve within 14 days of service AND within 4 month limit. ‘Relevant step’ (effective upon despatch rule) stuff doesn’t apply.

FILE IT WITH COURT WITHIN 7 DAYS OF SERVICE

Deadline for serving + filing PoC?

Within 4 months of issue of claim form, and within 14 days of service of claim form (remember, no relevant step rule)

Must then file copy within 7 days of service

DDOS for claim form vs PoC

Claim form = 2nd business day after completion e.g. 5th at 7pm would be DDOS on 7th. EVEN IF SERVED PERSONALLY

PoC (and all other documents) = if within claim form, same time. If separately, then;

• instant = same day if before 4:30pm. If not, next business day.

• Non-instant (e.g. post/DX) = 2nd day after posting (if business day). If not, then next business day

When is service deemed for things posted 2nd class?

IT ISN’T - 2nd class isn’t valid

Is DX an instant method of communication?

No

Options for responding to proceedings?

• File/serve an admission

• File defence

• File/serve admission + defence, if admitting only part of claim

• File acknowledgement of service (if disputing jurisdiction/unable to file defence within initial period )

Acknowledgement of service - when to use ?

If need more time for defence, or wish to dispute jurisdiction

Must be within 14 days of DDOS of particulars. Use form N9 (indicates whether want to defend or contest jurisdiction). Serve on court + D at same time?

Deadline to file defence?

If no acknowledgement, within 14 days of Particulars DDOS.

If acknowledgement, within 28 days of Particulars DDOS.

Serve on court + D at same time?

Can agree extension of up to 28 days between parties, but court must be notified in writing. So up to 56 days from Particulars.

Can’t agree more than 28, so could apply to court. Will consider OO and reason and impact of extension.

Response of money paid?

If served with claim for specified amount but already paid, will respond to claims with defence of money paid. Court will send notice to claimant asking if correct

Claimant has 28 days to respond - otherwise, claim stayed until they do. Must serve copy of response on D. If claimant wishes to continue (e.g. to get interest/costs), proceeds as defended claim.

How to admit the claim?

Admission form comes in N9 pack - could be for specific amount, or non-specified/non-money/return of goods.

Must complete relevant form + send to court (or to claimant, if specified claims omitted in full) within 14 days of DDOS of Particulars 

What happens if D admits claim in full?

C has right to enter judgement (final order which disposes of claim).

• Judgement will put them on searchable register for 6 years, so could ‘settle’ (if admitted + paid in full within 14 day response period, unlikely that judgement will be entered).

Once decision made, claimant simply files correct paperwork. Judgement payable within 14 days. After that, enforcement provisions. 

Admitting specified claim in part - what happens?

The balance (whatever not admitting to) remains in dispute, so will need to file defence for this

Admitting unspecified claim - what happens?

Liability will be resolved, but quantum (amount owed + interest) not yet known 

=subsequent hearings only deal with quantum 

Can admit liability to pay whole sum, OR offer sum in satisfaction 

Admission - can you request more time to pay?

• Admissions forms make provision for this request + allow D to supply personal financial information

• If courts doesn’t accept proposals, will determine rate of payment (taking into account D’s info and objections raised by claimant)

Why would D admitting claim want to avoid judgement?

Because judgements remain on a searchable register for 6 years, whereas settlements do not.

Calculating amount due on judgement - what’s included?

Amount of claim + interest (up to date of issue of claim???, using daily rate from Particulars) + costs

Counting time - clear day rule?

NEVER include day on which period begins (i.e. count that as day zero). This applies to EVERYTHING IN CPR.

If defined in reference to an event, DO NOT INCLUDE DAY OF EVENT (however, service would not constitute an event) e.g. 14 days before trial (don’t include day of trial)

If deadline relate to doing something at court office (e.g. filing document) and deadline ends on day which court office is closed, then WILL BE ON TIME IF DONE ON NEXT DAY court is open 

Specified period of 5 days or less - what is the rule here?

IF SPECIFIED PERIOD 5 DAYS OR LESS, any weekends/Bank Holidays/Christmas/Good Friday doesn’t count 

If document needs to be filed at court on 7th, and 7th is a Saturday, what should be done?

Can serve on the Monday - will still be on time