Dispute Resolution SQE FLK1

What is the primary role of litigation in legal disputes?

Litigation should be a last resort, with parties encouraged to explore alternative dispute resolution (ADR) methods to resolve disputes without court involvement.

What is the purpose of Alternative Dispute Resolution (ADR)?

ADR aims to resolve disputes without court intervention, using methods like mediation, arbitration, or negotiation.

When must ADR be considered in the litigation process?

ADR should be considered at every stage before and after court proceedings begin, as courts expect parties to make efforts to settle the dispute early.

What are the potential consequences of refusing ADR?

Cost penalties or unfavourable court rulings if refusal is deemed unreasonable

What is a stay of proceedings?

Temporarily halts legal process, often used when parties are engaged in ADR or need more time to prepare

What is pre-action protocol?

Explains the conduct and sets out the steps that the court would normally expect parties to take before commencing proceedings for particular types of civil claims

What is the Practice Direction on Pre-Action Conduct and Protocols?

Safety net provision for any type of matter that doesn’t have an associated pre-action protocol.

Parties are expected to follow the guidance in PD instead

What happens if a party does not comply with pre-action protocols?

Increased costs or reduced recoverable amounts

Court may stay proceedings until required steps are completed

When does pre-action protocol apply?

PI claims not falling within another pre-action and are likely to be allocated to fast track (up to £25,000)

What must a solicitor do when first taking instructions from a client in connection with a dispute?

• emphasise the benefits of ADR

• give consideration to:

  • jurisdiction and governing law

  • limitation

  • whether there is a legal cause of action, and if so the merits

  • who C and D are, nature of finances

What jurisdiction must the dispute be governed by?

English and Welsh law

Where can proceedings be commenced?

Issued in the local court where D is domiciled

If contract/tort dispute, can elect that case is heard where contract was due to be performed or where damage from tort occurred

What is the limitation date?

Last date on which a claimant can issue proceedings against a defendant

What happens if the limitation period expires?

Defendant has an absolute defence to that action

What does statute barred mean?

Where a claim is no longer legally enforceable as it has not been issued in the prescribed limitation period

How to calculate limitation periods

1. work out type of matter

2. establish when limitation period began

3. apply relevant statutory limitation period

What is the limitation period and its start date for a contract claim?

Start date: date of breach of contract

Limitation period: 6 years

What is the limitation period and its start date for tort claims (excluding PI and latent damage)?

Start date: date damage occurs

Limitation period: six years

What is the limitation period and its start date for PI tort claims?

Start date: date the cause of action occurs OR date of knowledge of person injured (whichever is later)

Limitation period: 3 years

What is the limitation period and its start date for latent damages claims?

Start date: when damage occurs or date on which C first knew about cause of action (whichever is later)

Limitation period:

• six years from date when damage occurred

• three years from date of knowledge

What is the latest time a latent damages claim can be brought?

Within 15 years after the negligent act or omission

What is latent damage?

Damage not immediately obvious

When might a court allow an extension to the limitation period?

• where parties are engaged in ADR that hasn’t finished by LD

• PI claims where prejudice to C outweighs detriment to D

When is non-compliance with pre-action protocols justified?

It may be justified when a limitation period is about to expire or when urgent proceedings are necessary, such as applying for a search order.

What is the Claimant's option if the defendant denies liability or the response is unsatisfactory?

If the defendant denies liability or offers an unsatisfactory settlement, the claimant can start formal legal proceedings by issuing a claim form.

What does issue protectively mean in the context of an extension to the limitation period?

Claim would be lodged with the court but not severed on D, up to a maximum of 4 months after issuing proceedings

What is a legal cause of action?

Legal basis on which a claimant issues proceedings

What is a litigation friend?

Person conducting court proceedings on behalf of a child or protected party

Need a certificate of suitability to satisfy court they meet the criteria to fill the role.

What are pre-action rules?

How the CPR expect parties to behave before issuing proceedings

What is the consequence of non-compliance with pre-action rules?

• defaulting party pays costs of proceedings, or part of costs of others

• defaulting party pay those costs on an indemnity basis

• if successful C, mat be paid a lower award

• if D is at fault and C is successful, D may have to pay a higher rate

What does indemnity basis mean?

Costs recovery in favour of receiving party.

No requirement for proportionality.

What are the main objectives of pre-action conduct?

1. understand each other’s position

2. make decisions about how to proceed

3. try to settle the issues w/o proceedings

4. consider a form of ADR to assist settlement

5. support the efficient management of proceedings

6. reduce the costs of resolving the dispute

What are the key requirements of PDPACP?

1. Exchange of key info

2. Consideration of ADR

3. Instruction of experts

4. Proportionality

What is the requirement to “instruct experts” (pre-action)?

Parties should look to instruct a single joint expert instead of an expert for each side to save time and costs

What is proportionality in pre-action conduct?

Only reasonable and proportionate steps should be taken by the parties to resolve the matter

Costs incurred should be proportionate

When might pre-action conduct not be appropriate?

• “without notice” applications

• where statutory/contractual limitation period is about to expire and compliance with PAC would like to D having an absolute defence

• apply to court for search order - if fear opponent may destroy documents

What is an application “without notice”?

Made with the intention of giving D no warning - freeing order on assets to avoid disposal

What are the pre-action protocol stages?

1. Letter of Notification (preliminary notice)

2. Letter of Claim

3. Letter of Response

Are parties expected to comply with the pre-action protocols?

Parties are expected to comply with the spirit of the protocols

Court will not be concerned with trivial breaches

What is a Letter of Notification?

1st stage of PD for pre-action

Letter to potential defendant(s) providing brief details so D can notify an insurer.

What is a Letter of Claim?

PD for pre-action - step 2

Claimant should write to defendant to give full details of claim

Must be acknowledge by D within 21 days

When must the defendant acknowledge a Letter of Claim?

Within 21 days

What is a Letter of Response?

PD for pre-action - stage 3

D investigates Letter of Claim and sends Response within 3 months of acknowledgement letter.

What happens if D denies liability or quantum in their Letter of Response (pre-action)?

• Parties disclose key documents

• Engage in appropriate negotiations

• Make proposals for settlement

• Claimant should send schedule of losses

• Joint selection of quantum expert, or C discloses report and D sends written questions

What is a claim form?

Form used to start proceedings in England and Wales

Brief summary of claim

What is particulars of claim?

Separate document that is served together/separately from CF.

Sets out material facts and legal cause of action being brought by C

What court should a claim be commenced in?

	County Court	High Court
£100,000 or less		X
PI £50,000 or less		X
+£100k	X	X
PI +£50k	X	X

What must be disregarded when valuing a claim’s financial worth?

• interest

• legal costs in pursuing claim

• costs involved in a counterclaim

• any amount that may be claimed by contributory negligence

What is a counterclaim?

Claim made by the defendant to offset the claimant’s claim.

What are the divisions of the High Court?

1. King’s Bench Division

2. Chancery Division

3. Family Division

What are the consequences of choosing the wrong court to issue a claim in?

• court may transfer and order C to pay costs of transfer

• if matter continues in HC, separate sanction for wrongly beginning there - up to 25% (discretionary)

What claims are heard in the King’s Bench?

1. Contract

2. Tort

3. Commercial matters

4. Admiralty (shipping) matters

5. JR

6. Defamation

7. PI claims

8. Mercantile

9. Technology and Construction

What claims are heard in the Chancery Division?

1. Land

2. Mortgage

3. Trusts

4. Administration of estates

5. Bankruptcy

6. Partnerships

7. Probate

8. IP / Patents

9. Company matters

10. Other contract and tort claims

What is the name of the claim form used?

N1

What information is required on a claim form?

• C’s name and address

• D’s name and address

• Brief details of claim

• Claim value

• Preferred CC hearing centre

• D’s address for service

• Particulars of claim

• Statement of truth

• Claimant’s or their legal rep’s address

When must the claim form be served?

Within 4 months of the date of issue

What is the date of issue?

When the court issues the claim form at C’s request

When might a claimant issue a claim on Money Claims Online?

Money claims

Up to £100,000

Against a maximum of 2 defendants

If you are issuing a bulk claim (utility companies) where do you issue these?

County Court Business Centre

Where can you issue a money claim?

• online

• by post in Civil National Business Centre or to CC

What is the date of service?

When the claim form is served on the defendant

What methods of service can be used to serve a claim form?

• Personal service

• First class post or DX

• Leaving CF at specified place

• Fax or other electronic comms

• Any other court authorised method

What step is required for CF to be served by personal service?

Individual: claim form left with them

Company: CF left with senior person

Partnership: partner/person with control or management of partnership at principal place

What step is required for CF to be served by first class post or DX?

Posting, leaving with, or delivering to or collection by relevant provider.

Can a claim form be served by second class post?

No - must be first class to be valid

What step is required for CF to be served by fax or electronic communication?

1. completing transmission of fax

2. sending email or other electronic transmission

What are the appropriate places of service of CF?

Individual: usual/last known residence

Sole trader/partnership: usual/last known residence of individual or last known place of business

LLP/Corporation/Ltd: principal office of partnership, or any place within LLP’s jurisdiction with real connection to claim.

What are the rules regarding counting days in CPR for service of CF?

• day period begins doesn’t count

• day on which period ends (specific day) is a clear day

• day on which period ends is in reference to an event (14 days before hearing) = not a clear day

• If 5 days or less, weekends and bank holidays don’t count

When do bank holidays and weekends not count as clear days for the purpose of serving a claim form?

Where a period is specified as 5 days or less

How long does a claimant have to serve the claim form once issued?

4 months

EXCEPT: if POC is served separately, must be up to 14 days after CF within the 4 month period

What does deemed service mean?

When a document or application is legally treated by the CPR as having been served on a person, irrespective of whether it arrived.

When is a CF deemed served?

On the second business day after the relevant step

What is a business day (CPR)?

Any day except Saturday, Sunday, bank holiday, Good Friday or Christmas Day

What is the deadline for the claimant to serve the Particulars of Claim after issuing the claim form?

Within 14 days after serving the claim form

What is the deemed date of service other than claim forms if an instantaneous method is used?

Served before 16:30 on a business day: same day

Served after 16:30 on a (non)business day: next business day

What is the deemed date of service other than claim forms if something other than the instantaneous method is used?

If posted on a business day: served second day after posting (if second day is a weekend, then served on Monday)

• If posted on Thursday/Friday, deemed service is Monday

Otherwise: served the next business day

What must the claimant do when they serve the claim form?

Must file a certificate of service with the court within 21 days of date of service of POC.

Who can make an application to add/remove/substitute a party?

Existing parties or a person who wishes to become a party

What documents must be filed at court to add/remove/substitute a party?

• application notice

• amended copy of claim form and POC

• if being added, new C’s written consent to be added

What are the grounds of an application to add/remove/substitute a party if made within the limitation period?

• must be desirable to add new party to resolve all matters in the dispute

• issue involving new party and an existing party is connected to dispute and is desirable to add them to resolve

What are the grounds of an application to add/remove/substitute a party if made outside the limitation period?

• new party substitutes a mistakenly named party in CF

• claim cannot be properly continued by or against OG party unless new party is added/substituted

• OG party has died or bankrupt, interest/liability has passed to new party

What must happen if the court grants an application to add/substitute/remove a party?

Copy of the order must be served on all parties and those affected by the order

Is it possible to add or amend a cause of action on a claim form?

Yes; if not served on any other party, no court permission needed

If served, the court either needs written consent of all parties to action the amendment, or court permission.

How is a CF served outside England and Wales?

Within 6 months of date of issue

How is a CF served within the EU?

English courts have jurisdiction

Court permission needed to serve post-Jan-21

How is a CF outside the EU granted/served?

Court permission sought (N244) → grounds, reasonable prospect of success, Eng/Wales proper place

Granted - 6 months to service CF

If no permission needed → N510

How are documents served outside England and Wales?

C provides CF and other documents to court, who submit to authorities in country D is to be served

Foreign authorities then serve document and provide a certificate of service

Does a defendant need to respond to a claim form served where POC will be served later?

No need

Does a defendant need to respond to CF attached with POC or where CF is served before POC?

Must act by:

• admitting the claim in whole/part

• filing an acknowledgement of service

• filing a defence

• ignore the claim and allow C to apply for judgment in default

What are the three options available for a defendant responding to proceedings?

1. file and serve an admission

2. file a defence

3. file an acknowledgement of service

What is an acknowledgment of service?

Formal document filed with court by D to acknowledge they have been served CF and POC

Used when D doesn’t want to admit but is not ready to file a full defence - extends the deadline for filing

What is a judgment in default?

Judgment awarded in C’s favour on the basis D failed to respond to CF and POC being served on them in the relevant time

What is a specified claim?

Type of claim issued for a fixed amount of money allegedly owed by D to C

What is an unspecified claim?

Particular type of claim in tort, where amount of money to be awarded is left to the court to decide

In POC should indicate the value bracket they are seeking, or inform the court that they don’t know the value of the claim

How should parties deal with admissions for whole of claim?

1. D completes admission form offering to pay claim in full within specified time

2. D provides details of assets, income, expenditure, and a proposal for instalment payments to be sent to C

3. C either accepts or objects. Objection - court sets instalment figures and time for a disposal hearing

What is a disposal hearing?

Where C raises an objection to the admission form and D’s financials

Court sets a date to hear each side’s POV of instalment figures.

How should parties deal with admissions for part of claim?

1. D completes admission form for parts of claim, often making an offer to settle whole matter

2. C has 14 days to decide on offer

3. If C accepts - court proceeds to judgment of sum agreed if C requests this

4. If C accepts offer amount but rejects instalments, disposal hearing listed

   1. If C rejects offer - disputed case and D must file a defence

What happens if D files an admission of liability in an unspecified claim?

Court will stay (put on hold) proceedings and arrange to list for a disposal hearing

1. D can also make an offer to settle which court notifies C

2. C accepts - court enters judgment

3. If C accepts amount but instalments - order for D to show assets, income and expenditure

When must D file an acknowledgement of service?

14 days from date of service of POC

If an acknowledgement is filed, how long does D have to serve a defence?

Maximum of 28 days from date of service of POC to file defence and counterclaim