SQE 1 - Dispute Resolution
Studied by 27 people
Learn
Practice Test
Spaced Repetition
Match
Flashcards1/299
There's no tags or description
Looks like no tags are added yet.
Name | Mastery | Learn | Test | Matching | Spaced |
|---|
No study sessions yet.
300 Terms
What is the ‘overriding objective’ of the Civil Procedure Rules?
to enable the court to deal with cases justly and at proportionate cost'
The CPR rules must be followed - are the Practice Directions also binding?
Yes they are also binding and must be followed.
What is the general rule regarding costs?
The unsuccessful party will be ordered to pay the costs of the unsuccessful party (CPR 44.2 (2))
What is the general rule for burden of proof in civil claims?
The burden of proving any issue of fact or law generally falls on the party who asserts it.
What is the standard of proof in civil claims?
The standard of proof is proof on a balance of probabilities. In other words, a fact will be established if it is more likely than not to have happened.
What are the three situations where the court may treat matters as established without requiring evidence?
Formal admissions: Made in the statements of case or in response to a notice to admit facts (CPR 32.18).
Presumptions: For example, res ipsa loquitur ("the facts speak for themselves"), where an accident implies negligence due to the nature of the event.
Inferences of fact: Common sense conclusions drawn from primary facts.
What happens if a legal claim is not commenced within the relevant limitation period?
The claimant will be barred from recovering damages, and the defendant will have a full defence.
What is the general limitation period for personal injury claims?
3 years from the later of
Date cause of action occurs or:
Date of knowledge of person injured
What is the limitation period for claims under the Fatal Accidents Act 1976 (s 12)?
3 years from the later of the date of death or the date of knowledge of the dependent.
How is 'date of knowledge' defined under s 14 of the Limitation Act 1980? (for the purposes of limitation in personal injury or fatal accidents?)
The date of knowledge is:
when the claimant knew (or could reasonably have known) that the injury was significant,
attributable to the alleged wrongdoing,
the identity of the defendant,
and any other relevant person.
What is the court's power to extend the limitation period in personal injury and fatal accidents claims under s 33?
The court can extend the limitation period if it is equitable, considering the conduct of the parties, reasons for delay, and the effect on the evidence.
What is the limitation period for contribution claims under s 10 of the Limitation Act 1980?
The limitation period is 2 years from the date on which the right to recover the contribution arose, either from a judgment or an agreed payment.
What is the limitation period for negligence actions involving latent damages under ss 14A and 14B?
The limitation period is the later of 6 years from when the cause of action accrued or 3 years from the date of knowledge, subject to a 15-year long-stop limitation.
What is the limitation period for enforcing a judgment under s 24 of the Limitation Act 1980?
The limitation period is 6 years from when the judgment became enforceable, and no interest can be recovered after this period.
What are the general limitation periods for actions in tort and contract
The limitation period is 6 years from the date on which the cause of action accrued.
How does the Limitation Act 1980 address claims where the claimant is under a disability
The limitation period starts when the disability ends with the usual yearly rules then applying.
What is the limitation period for cases involving fraud, concealment, or mistake
The limitation period does not start until the claimant discovered (or could have discovered) the fraud, concealment, or mistake.
How are claims brought against partnerships?
Claims against partnerships are generally brought using the name under which the partnership carried on business at the time the cause of action accrued, unless it's inappropriate, such as in cases of multiple mergers or name changes.
How should a claim be brought against a sole trader?
A claim against a sole trader should include both the individual’s name and the trading name, for example, "John Flagstone (trading as John's Café)."
How are claims brought against trusts or deceased persons?
Claims can be brought by or against trustees, executors, or administrators. In the case of deceased persons with no personal representative, the claim can be brought against "the estate of" the deceased.
Who represents children and protected parties in legal proceedings?
Children and protected parties must be represented by a litigation friend, who can fairly and competently conduct proceedings on their behalf and has no adverse interest.
What is the age of a ‘child’ in civil proceedings?
Under the age of 18 years old.
Is capacity in proceedings presumed?
Yes, if they are a person of adult age.
The burden of proof on the contrary rests with whoever is asserting incapacity.
Does a litigation friend have to pay any costs?
A litigation friend has to undertake to pay any costs which a child or protected party may be ordered to pay - they may be repaid from any assets of the child / protected person.
How should children and protected parties be referred to in the title of proceedings?
e.g., "Alice Brown (a child, suing by Kate Brown her mother and litigation friend)" or "Adam Black (a protected party by Clara Dunn his litigation friend)."
What steps can be taken against children in proceedings before they have a litigation friend appointed?
only issue and service of the claim form, or to seek he appointment of a litigation friend by way of a court order.
Any other step taken in the proceedings where there is no litigation friend has no effect
What are the potential consequences of non-compliance with a pre-action protocol or the Practice Direction on Pre-Action Conduct?
adverse effects on costs and interest
stay proceedings
In what circumstances might non-compliance with pre-action protocols be justified?
Non-compliance may be justified when a limitation period is about to expire, necessitating immediate proceedings, or when there is a need for urgent action or an element of surprise, such as applying for a search order.
How does the Practice Direction differ from specific pre-action protocols?
The Practice Direction applies to all cases, but if a specific protocol applies, its provisions override any conflicting provisions of the Practice Direction.
What are the general pre-action rules? (not specific protocol)
Claimant should write to Defendant with a Letter of Claim
Within a reasonable period, the Defendant should respond, accepting the claim or rejecting with reasons
The parties should disclose key documents, engage in negotiations and make proposals for settlement
What are the two principal types of civil court in England and Wales?
The High Court and the County Court.
Where should claims (non PI) of less than £100,000 be issued?
County Court (less than £100,000)
Where should PI claims of less than £50,000 be issued?
County Court (less than £50,000)
What is the threshold for claims in the High Court?
PI claims over £50,000 can be issued in either court
Non PI Claims over £100,000 can be in either County or High Court
What is the threshold for claims in the County Court?
PI claims under £50,000
Non PI Claims below £100,000
What factors should be considered when deciding whether to issue a claim in the High Court or County Court?
The financial value of the claim,
the complexity of the facts,
legal issues,
remedies or procedures involved,
the importance of the outcome to the public (7A PD 2.4).
What happens if a claim is issued in the wrong court?
The court may transfer the case and order the claimant to pay the costs of the transfer.
If issued in the High Court when it should have been in the County Court, any costs awarded may be reduced by up to 25% (this is discretionary).
What is the significance of the date of issue of the claim form?
The date of issue stops time running for limitation purposes and starts the clock for the time in which the claim form must be served.
What is Money Claim Online?
Money Claim Online is an online service provided by HMCTS for issuing simple County Court money claims
up to £100,000
against no more than two defendants
Who can effect the service of the claim form?
The claim form can be served by either the court or the claimant/claimant’s solicitor.
If the court serves, they usually do so by first class post. If the Claimant serves, they must file a certificate of service at court within 21 days, detailing the date and method of service, unless all defendants have acknowledged service.
How can the claim form be served by the Claimant / Claimant Sols?
Personal service.
Leaving the document at a permitted address.
First class post
Document Exchange (DX).
Fax (if agreed).
Other electronic methods (e.g., email, if agreed).
Any other method authorised by the court (CPR 6.3).
What is the time limit for serving the claim form?
The Claim Form must be served within 4 months of the date of issue of the claim form (12pm midnight).
When must particulars of claim be served if not included with the claim form?
To the defendant: within 14 days of the deemed service of the claim form and within 4 months of issuing the claim form.
The POC must then also be filed at court within 7 days of service.
What are the methods for serving documents other than the claim form?
personal service,
delivery to or leaving the document at a permitted address,
first class post,
DX,
fax, or
other electronic methods.
When is a claim form deemed served?
It is deemed served on the second business day after the relevant step for service is completed, regardless of the actual date of receipt.
When is an ‘other’ document deemed served?
For instant methods (personal service, fax, email, delivery to a permitted address):
Before 4:30pm on a business day: Deemed served the same day.
After 4:30pm or on a non-business day: Deemed served the next business day.
For non-instant methods (post, DX):
Deemed served on the second business day after posting or giving to DX provider, if it’s a business day.
If not a business day, deemed served on the next business day.
What happens if particulars of claim are served separately from the claim form?
The deemed date of service for particulars of claim is calculated according to the rules for documents other than the claim form (CPR 6.26), based on the method of service used.
What is the standard format for a statement of truth for an individual?
"I believe that the facts stated in this [claim form/defence/etc.] are true."
What is the standard format for a statement of truth for a company?
"The [claimant/defendant] believes that the facts stated in this [claim form/defence/etc.] are true.
I am duly authorised by the [claimant/defendant] to sign this statement...."
What additional sentence must be included in every statement of truth?
"I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth."
What are statements of case?
key documents by which the parties set out their position in relation to the factual basis of the claim and the claimant’s entitlement to relief. They therefore include the claim form, particulars of claim (if not included in claim form), defence, Part 20 claim and reply to defence.
In a personal injury claim, what specific information must the claimant include regarding the amount expected to recover?
The claimant must state whether the amount expected to recover for pain, suffering, and loss of amenity is or is not more than £1,500.
What are the legal bases for claiming interest in a legal action?
By virtue of a contract
section 35A of the Senior Courts Act 1981 (High Court)
section 69 of the County Courts Act 1984 (County Court).
What is included in the 'prayer' section of the particulars of claim?
The prayer is a summary of the remedies sought, such as "damages under paragraph 13" and "interest under paragraph 14," providing a clear statement of what the claimant wants.
What are the 3 main responses available to a defendant in response to a claim issued against them?
Admission
Defence
Acknowledgement of Service
What is the deadline for filing an acknowledgment of service?
It must be filed within 14 days of the deemed date of service of the particulars of claim (this can be the same date as the claim form or different if served separately).
What effect does filing an acknowledgment of service have on the deadline for filing a defence?
It extends the deadline for filing a defence to 28 days from the deemed date of service of the particulars of claim.
Once an acknowledgement of service is filed, can a further extension be agreed between the parties for serving the defence?
Yes, they can agree a further extension of up to 28 days. (giving up to 56 days).
The court must be notified in writing but no formal application is required.
What are the consequences if a defence is not filed within the prescribed time limits?
The claimant can apply for a default judgment if the defendant does not file a defence within the time limits set by the CPR.
What happens after a defendant files an admission under forms N9?
The claimant can request a judgment (must do so within 14 days of receiving notice of admission)
Judgment is payable within 14 days
Where a specified period is less than 5 days, do weekends or bank holidays count?
No
If a deadline to file something falls on a day the court is closed (e.g a bank holiday?) when is the last accepted last date for filing?
It is treated on time if filed on the following day when the court is open.
When calculating time periods expressed as a number of days in the CPR, the ‘clear days’ rule means
The day on which the period begins never counts and if the day on which the period ends is defined by reference to an event, such as a hearing, that day does not count either.
What are the three responses the defendant must make in relation to each allegation in the POC’s
Admit the allegation,
Deny the allegation (with reasons), or
Require proof of the allegation.
What happens if a defendant fails to deal with an allegation in the particulars of claim?
The defendant is deemed to admit the allegation unless they have set out their own case in response to it, in which case they are deemed to require proof.
What is a 'general denial' in a defence?
A general denial is a statement near the end of the defence denying that the claimant is entitled to the amount claimed or any amount, often included as a standard paragraph.
What is the purpose of a reply, and when should it be filed?
A reply is an optional statement of case filed by the claimant to respond to new points raised in the defence. It should be filed with the directions questionnaire, which is usually the final statement of case.
What is a default judgment?
Default judgment is a judgment granted in the claimant's favour without a trial if the defendant has not responded to the claim by either serving an acknowledgment of service or a defence within the prescribed time limits.
How does default judgment differ from summary judgment?
Default judgment is granted due to the defendant's failure to respond, without considering case merits.
Summary judgment is granted when the court finds the case weak on facts or law, after considering the merits.
When must a court set aside default judgment?
If the judgment was entered wrongly
e.g if time limit hadn’t expired
e.g if claim satisfied
When may a court set aside default judgment?
If judgment was correctly entered but the defendant has a real prospect of successfully defending the claim (or another good reason)
What is a counterclaim?
A counterclaim is a separate claim made by the defendant against the claimant, pursued in the same proceedings as the main claim. It is usually filed with the defence and must establish duty, breach, causation, and loss.
When can a counterclaim be made?
A counterclaim can be made at the same time as the defense. If made after the defense has been filed, the defendant needs the court's permission to file it.
If a Claimant wishes to defend a counterclaim, what is the time limit for filing their defence?
14 days from deemed service of the counterclaim. If the Claimant does not reply, judgment in default may be entered against them.
In the context of additional claims, what is a ‘contribution’.
A right of someone to recover from a third person all or part of the amount which he himself is liable to pay.
In the context of additional claims, what is an ‘indemnity’.
A right of someone to recover from a third person the whole amount which he himself is liable to pay.
What is an ‘additional claim’?
This is a claim by the Defendant for a contribution or indemnity or other remedy from a third party (whether or not they are a party to the proceedings).
Is the court’s permission required for a counterclaim?
Not if the particulars of the counter claim is filed at the same time as the defence.
If they aren’t filed at the same time, the court’s permission is required.
What are the general rules for amending statements of case?
Amendments to statements of case require verification by a Statement of Truth
Amendments can be made any time before the statement of case is served
Amendments require written consent from all parties or court permission after the statement of case is served
A party will need to seek the court’s permission if the statement of case has been served and the other party won’t agree an amendment.
How can a statement of case be amended once it has been served on the other party?
With written consent of all parties; or
With permission from the court
How can a statement of case be amended once it has been served on the other party if the limitation period has now expired?
to add or substitute a new claim if it arises out of the same or substantially the same case
to correct a genuine mistake at to the name of a party
to alter the capacity in which a party claims
How does a claimant add or substitute a party in when the claim is within the limitation period?
The claimant will require the court’s permission to remove, add or substitute a party if the claim form has already been served.
The court may add them if:
it is desirable and will resolve all matters in dispute or a specific issue concerning that party
No-one may be added as a claimant without their written consent.
How does a claimant add or substitute a party in when the claim is outside of the limitation period?
The court’s permission is needed.
They may add them in if:
the limitation period hadn’t expired when proceedings commenced
the addition is necessary (named by mistake, died, bankrupt or claim cannot continue)
What is a request for information (Part 18)
It is a request from either party for clarification as to issues which are in dispute in the proceedings.
How should a party respond to a Part 18 request for information?
In writing (signed and dated by solicitor)
Serve on all parties and file at court
Verified by statement of truth
When should an interim application notice be served on the other party?
Service must be effected as soon as practicable after the application is filed and not less than three clear days before the application is to be heard
What is required to make an interim application?
Form N244
Supporting evidence
Draft order
Fee
Statement of costs required 24 hours before hearing
If an application is made without notice (e.g freezing injunction), what is the time frame the respondent is given to have it set aside?
7 days after service of the application notice
What is the purpose of a summary judgment?
to enable the court to dispose of claims or issues without the need for a full trial
Who can apply for summary judgment?
Either party can apply for summary judgment
They need to show that the aspect they are applying for summary judgment on has no real prospect of defending /succeeding and there is no other compelling reason to have the matter proceed to trial.
What notice should be given for an application for summary judgment?
Notice should be served at least 14 days before the hearing
Any respondent written evidence must be filed and served at least 7 days before the hearing
Any further evidence from the applicant is to be filed and served at least 3 days before the hearing
(Summary judgment)
What is an ‘interim payment’?
An amount paid by the defendant to the claimant ‘on account’ of damages - before the court has made it’s final decision at trial.
When will the court award an application for an interim payment?
When the defendant has admitted liability
the claimant has a judgment that details damages are to be assessed
Court is satisfied that if it went to trial, the claimant would obtain a judgment for a substantial amount of money against the defendant.
How does a claimant make an application for an interim application?
Under the usual application rules, but they must wait until the time for serving the AOS has expired.
What notice should be given for an interim payment?
Notice should be served at least 14 days before the hearing
Any respondent written evidence must be filed and served at least 7 days before the hearing
Any further evidence from the applicant is to be filed and served at least 3 days before the hearing
(Interim payment)
What is the purpose of security for costs?
Security for costs is an application made by a defendant to ensure that the claimant can pay the defendant's legal costs if the defendant successfully defends the claim.
What are the grounds for a security for costs order?
The defendant must prove that:
It is just to make the order (CPR 25.13(1)(a)). and
the claimant is resident outside the jurisdiction (not bound by the Hague Convention); or
a company likely unable to pay costs; or
or the claimant moving assets to evade enforcement (CPR 25.13(1)(b) & (2)).
What is an interim injunction?
An interim injunction is a temporary court order requiring a party to either do or refrain from doing a specific act before trial.
It is typically granted in urgent situations to prevent irreparable harm or to maintain the status quo until the case is resolved.
What are the types of interim injunctions?
Prohibitory Injunction: Requires the respondent to stop doing a specific act.
Mandatory Injunction: Requires the respondent to perform a specific act.
Quia Timet Injunction: Prevents a threatened wrong that has not yet occurred.
When will an interim injunction be granted?
It will be granted when it is ‘just and convenient’ to do so
Is there a serious question to be tried?
Would damages be an adequate remedy instead for the applicant?
Would damages be an adequate remedy instead for the respondent?
Is there a balance of convenience?
Note 
Flashcards (52)