Disputes/tort?

Limitation periods

PI claims - 3 years from cause of action or date of knowledge

Contract/tort - 6 years from cause of action

Latent damages - 6 years from cause of action or 3 years from requisite knowledge - 15 year longstop

When does limitation period start if disabled or under 18?

The limitation period starts when the 'disability' ends (i.e. when they turn 18)

What are time periods for responding to a letter of claim?

Around 14 days or 90 days for complex cases (not a set deadline)

When can money claims online be used?

alternative procedure for county court for money claims with a value of up to £100,00 which are against no more than 2 defendants – D may respond through the online service

Can only be used for money claims not where other remedies are also sought

Who can bring a fatal accidents claim?

Brought when someone has died for losses suffered by dependants e.g. family share the wages they lost support.

• Blood relatives

• Related by marriage

• Cohabited for over 2 years

• Any child treated by deceased as a child

Losses arise from date of death to date of assessment

When are costs payable following a judgment?

A party must comply with an order for the payment of costs within 14 days of (a) the date of the judgment or order if it states the amount of those costs.

When is a cost budget filed?

• claim with a stated value of less than less than £50,000, the costs budget should be filed with the directions questionnaire

• otherwise it should be filed 21 days before the first case management conference.

What is indemnity basis of costs?

The court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party

What are costs on standard basis?

to be reasonable in amount, reasonably incurred and proportionate any doubt is in favour of the party receiving the costs

When are fixed costs awarded?

In fast track cases and sometimes in intermediate track - governed by CPR

When can without notice applications take place?

1. Exceptional urgency e.g. remedy needed immediately

2. Overriding objective is best furthered by doing so

3. All parties consent

4. Court gives permission

5. Court order, rule or direction permits; or

6. Insufficient time to serve an application notice for a fixed hearing date

When is the small claims track used?

£10,000 OR less value

When is fast track used?

• Up to 25,000 value

• 1 day trial max

• expert evidence 1 per party in max 2 fields

When is the intermediate track used?

• Up to £100,000

• Trial 3 days max

• Oral expert evidence 2 per party

What is the deadline for submissions before CMC

• Disclosure report no less than 14 days before first CMC

• Draft directions no later than 7 days before first CMC

What are the cost deadlines before a CMC

• Budget no less than 21 days before first CMC

• Disclosure report no less than 7 days before first CMC

Failure to file a budget = party can only claim applicable court fees

Without notice application procedure

1. File application Notice

2. Give full frank disclosure of matters relevant to hearing

3. Hearing - court only hears from applicant

4. May be a second hearing where respondent can attend

With notice procedure for applications

1. File application notice

2. Serve docs on other parties at least 3 clear days before date court has set

3. C may want to oppose app - must do ASAP

4. Reply to C’s opposition - must do ASAP

5. Exchange statement of costs no less than 24 hours before hearing

6. Hearing

Timeframe for applications for interim payment and summary judgment

1. File application notice

2. Serve docs on other parties at least 14 days before hearing

3. C may want to oppose app - 7 days before hearing

4. Reply to C’s opposition - 3 days before hearing

5. Exchange statement of costs no less than 24 hours before hearing

6. Hearing

Are pre action costs recoverable?

Yes provided they are incidental to proceedings, reasonable and proportionate.

Wouldn’t include consideration of options for funding claim.

How to calculate success fee under CFA?

Divide the chances of losing by the chance of winning which is then applied to the base costs

Who meets the costs of a mediation?

The mediator's fee will normally be borne by the parties equally and they will be jointly and severally liable to the mediator for it

What is early neutral evaluation?

• Neutral party usually with specialist experience

• Provides non binding view of case to narrow issues and settle

What is an adjudication?

• Relates to construction disputes

• Flexible and non-binding

How does a conditional fee arrangement work?

• no win no fee - if win get base fee and a success fee

• PI cases success fee is capped at 25% of the damages

• client can recover basic fee, damages and disbursements from other side

How do damages based agreements work?

• No win no fee

• Solicitor will be paid a proportion of the damages awarded to the client

• Max 25% in PI

• Max 35% employment

• Max 50% all other cases

How to determine governing law in contract?

1. Any agreement? if so this will stand

2. Where seller habitually resides or service provider is

3. If it is for land it is where the land is situated

How to determine governing law in tort?

1. any agreement by parties

2. If both habitually reside in same country will be that country

3. Country in which damage occurred if not

4. Can apply another country if more manifestly connected

When is permission not needed to serve out of jurisdiction

• D submits to jurisdiction

• Jurisdiction clause selecting england and wales (doesnt need to be exclusive)

• Hague convention applies

What is the hague convention?

1.     Civil or commercial matter

2.     Not excluded from convention (disputes with consumers and employment matters)

3.     A clause in the contract give jurisdiction to a contracting state and exclusively that state

a.     Contracting states = UK, EU members, Mexico, Singapore, Montenegro

4.     Agreement is evidenced in writing

When is a claim considered to be brought for the purposes of the Limitation Act 1980?

Claim is considered to be brought when the court receives the claim form from the claimant not when its issued.

What must a claimant state in the claim form for a personal injury claim?

the claimant must state in the claim form whether the amount they expect to recover as general damages for pain, suffering, and loss of amenity is more than £1,000 or not

Against whom should a claim be brought for a cause of action arising during a partnership's existence?

Claim should be against name of the partnership even if its not in existence anymore if it was when the cause of action accrued.

e.g. pretty faces (a firm)

Where a claim form is to be served and no address for service has been provided where should it go?

Company’s registered address unless solicitor or anyone on behalf of company has indicated solicitor has been authorised to accept service

When is a claim form deemed to be served?

Second business day after completion of relevant step

What are the requirements for contributory negligence?

/(1) failure to take reasonable care for own safety

(2) the failure to take care has contributed to the loss/injury

What is required for the defence of consent in tort?

1. C had capacity to give valid consent

2. C had full knowledge of the nature and extent of the risks

3. C agreed to the risk of injury

4. The agreement was voluntary

What damages can a deceased pedestrian's estate claim in a negligence action under the Law Reform (Miscellaneous Provisions) Act 1934?

• compensatory damages and general damages

• deductions for contractual sick pay and benefits

• can also claim for pain, suffering, and loss of amenity for dates between the accident and date of death

What cases does the Kings Bench Division of the High Court deal with?

• personal injury

• negligence

• breach of contract

• breach of a statutory duty

• Applications for bail

What specialist courts fall within KBD?

1. Administrative court - judicial review, appeals by case stated, other applications

2. Admiralty Court - shipping and maritime disputes

3. Commercial court - commercial contracts and business docs, insurance, financial instruments

4. Technology and construction court - claims by engineers, land and buildings, environmental claims, construction

What is the chancery division in the high court?

• disputes in relation to business, property or land

• trust disputes

• competition claims

• IP issues

• probate disputes

Specialist courts - insolvency, companies, IP enterprise, patents

Can a child conduct proceedings without a litigation friend?

Only if permitted to do so by a court order

What is the correct step for a claimant to take where the defendant has failed to acknowledge service?

Default judgment can be obtained for damages.

If wanting remedy that isn’t just damages will also need application to court

What is a key distinction with a part 8 claim?

D is not required to file an AOS and default judgment cannot be obtained

What extension can the parties agree for need to file AOS?

28 days and must notify the court.

If any longer the court must approve.

Withdrawal of a part 36 offer

1. Trial started = courts permission needed

2. Already been accepted = cannot withdraw or change terms

3. Relevant period expired = can withdraw

4. During relevant period = won’t come into effect until end of RP but offeree may accept still

How to accept a part 36 offer?

• in writing

• File notice at court if case has been issued

Cost consequences of acceptance of part 36 offer

1. Accepted in relevant period = C is entitled to costs up to date of acceptance

2. Accepted outside relevant period = Court will determine unless parties agree - normally C is awarded costs up to expiry of relevant period and then offeree is to pay offerors costs from expiry to acceptance

3. Offer made less than 21 days before trial = court determines

4. Accepting for part of claim = if abandon rest only entitled to cost of part, if don’t court will determine rest unless parties agree

What are the requirements for an interim payment?

Court is satisfied that, if the claim went to trial, C would obtain judgment for a substantial amount of money (other than costs) against D

Requirements for an interim injunction?

1. Is there a serious question to be tried? ie more than 50% prospect of success

2. Would damages be an adequate remedy for injured party?

3. Where does the balance of convenience lie? is it possible to compensate the respondent if it turns out that an injunction should not have been granted

When is security for costs awarded?

1. Just to make an order

AND

1. C is resident out of jurisdiction in a state not bound by hague convention; or

2. C is a company and reason to believe it will be unable to pay D’s costs

3. C has taken steps in relation to its assets that would make enforcement of a costs order difficult

What is summary assessment of costs

Judge determines costs at end of a hearing immediately based on parties statement of costs (which were filed no less than 24 hours before)

• used at end of an application or in a fast track trial

What is detailed assessment of costs

• receiving party serves notice of commencement and bill of costs on paying party

• paying party has 21 days to dispute bill of costs

• If cannot reach agreement - receiving party should file request for detailed assessment hearing with cost officer

What is a qualifying one way costs shifting?

clients who have suffered a personal injury cannot be ordered to pay the costs of the defendant, even if they lose their personal injury claim

When should the material contribution test be used?

When D’s breach and other factors materially contribute to the harm

When is the material increase in risk test used?

Asbestos cases - mesothelioma

The breach materially increased the risk of the harm but didn’t necessarily contribute to it