Dispute Resolution Flashcards

Question

True or False: A consumer can only claim against the retailer of a defective product.

Answer 1

State this in the statement of value

Answer 2

Parties should exchange sufficient information to understand each other's position

Answer 3

1. To file an admission 2. To file an acknowledgement of service 3. To file a defence

Answer 4

Within 14 days of deemed service

Answer 5

Within 28 days of the deemed service of the Particulars of Claim

Answer 6

D admits the whole claim for a specified amount, they must provide income details and expenditure and make a payment offer (in full/instalments).

Answer 7

The judge will decide the appropriate rate of payment, usually without a court hearing

Answer 8

C has 14 days to consider and either: 1. Accept the part admission 2. Accept the part admission but not D’s proposal = court deciding on their suitability 3. Reject the entire offer and proceed with their claim This is primarily based on D’s ability to pay

Answer 9

If C accepts, they can enter judgement for the offered amount. If C rejects/ D makes no offer = C enters judgement for damages to be assessed at a disposal hearing

Answer 10

Filing the acknowledgement of service form buys them 28 days from 14. OR Through agreement from the other parties, can buy an extra 28 days (Total of 56 days from the date of service of the particulars of claim) Can get further extensions through court’s permission

Answer 11

Counterclaim

Answer 12

Default judgement - C can force the issue and obtain a judgement without any consideration of the facts

Answer 13

C can apply under CPR Part 12 and satisfy the court that: 1. The particulars of claim have been served to D 2. D has not filed an acknowledgement of service form or a defence within the relevant time period

Answer 14

If there is a pending application by D for summary judgement/ to have C’s statement of case struck out.

Answer 15

1. Indicate the date payment was due 2. Calculate an up-to-date total for the interest claimed 3. State a daily rate at which interest accrues

Answer 16

The court will grant the request but the case must come to court to decide the amount of damages payable (a disposal hearing).

Answer 17

1. The Mandatory Ground 2. The Discretionary Ground

Answer 18

When the judgement was: - entered too early, - before the time for filing an acknowledgement of service/defence expired or, - the claim has already been paid in full

Answer 19

Where D: 1. Has a real prospect of successfully defending the claim or 2. There is some other good reason why D should be allowed to defend the claim This should be done promptly

Answer 20

D was ill/away on holiday so could not reply within the time constraints.

Answer 21

Work pressure or misplacement of documents

Answer 22

1. D succeeds and the judgement is set aside 2. C wins and the judgement remains in place so they can proceed to enforcement 3. A conditional order is made - judgement is set aside on condition that D pays the claim amount into court.

Answer 23

C is at fault for entering judgement when they shouldn’t have = C is liable to pay D’s costs

Answer 24

Neither side is at fault. Depends on the court

Answer 25

D is at fault for failing to promptly deal with the proceedings = they pay C’s litigation costs.

Answer 26

D pays C’s costs of the application.

Answer 27

Discontinuance

Answer 28

Only if every party consents in writing or the court gives permission

Answer 29

Proceedings are brought to an end and C will be liable for the costs of the proceedings unless the court orders otherwise.

Answer 30

No, unless agreed

Answer 31

When a settlement is reached prior to the court proceedings.

Answer 32

A legally binding agreement between parties outside of court proceedings.

Answer 33

1. The agreed terms by the parties must be drawn up 2. It must be expressed as being ‘By Consent’ 3. Signed by the legal representative acting for each party

Answer 34

If the parties want any terms to be confidential / terms that are beyond the powers of the court to order.

Answer 35

1. ‘By consent’ (records that there is an agreement) 2. Stay (pause) of proceedings 3. Liberty to apply (any party can apply to the court for the stay to be lifted/court can enforce the settlement if a party doesn’t perform its part of the agreement - new court proceedings don’t have to be commenced to enforce this) 4. Payment of costs 5. Signature

Answer 36

Must state it in the acknowledgement of service and then challenge within 14 days with evidence.

Answer 37

The service of the claim form is set aside = proceedings ending.

Answer 38

The original acknowledgment of service has no effect and D must file a further acknowledgement within 14 days = proceedings continue as normal

Answer 39

The formal documents in which the parties set out their cases, serve between the parties and file at court

Answer 40

1. The claim form and particulars of claim 2. If contested, D files a defence 3. If necessary, C sends a reply 4. D may file a counterclaim = C serving a defence to the counterclaim 5. Party can require a request for further information

Answer 41

1. A concise outline of the facts on which C relies 2. If C is seeking financial compensation, a statement to that effect and the details

Answer 42

1. The status of the parties (confirm D’s busines) 2. Chronological Events 3. Establish the existence of contract (attach a copy if written) 4. Express/implied terms 5. Alleged breach and how they were breached 6. Factual consequences of the breach 7. Alleged damage/loss 8. Interest (only awarded if claimed) 9. Summary of remedies 10. Signed statement of truth

Answer 43

1. The contract itself may specify a rate of interest payable 2. Claimed under the Late Payment of Commercial Debts (Interest) Act 1998 : doesn’t apply to unspecified claims/debts owed by consumers — 8% per annum — C also entitled to a small, prescribed compensation 3. Court has discretion to award interest : Senior Courts Act 1981 - High Court , County Courts Act 1984 - County Court

Answer 44

Interest is precisely calculated as a lump sum for the amount accrued from breach of contract up to the date of issue of the proceedings + a daily rate E.g: A has not paid B the contract price of £13,000. The written contract provides that interest is payable on late payment at 20% per annum from and including the day of completion of the works. B issues a claim form on 31 October. B is entitled to interest of £7.12 (that is £13,000 x 20% + 365) on £13,000 for 50 days. B should claim £356.00 by way of interest + £7.12 is added to the outstanding balance everyday until judgment is awarded.

Answer 45

1. Denied (with reasons why and their own version of events) 2. Not admitted 3. Admitted

Answer 46

It is deemed as accepted

Answer 47

Contributory Negligence and C’s failure to mitigate their loss

Answer 48

14 days unless an extension up to 28 days has been agreed with D

Answer 49

Needs either the written consent of all parties or court permission.

Answer 50

1. To add/substitute a new claim, if this arises out of the same or substantially the same facts as an existing claim. 2. To correct a genuine mistake as to the name of a party 3. To alter the capacity in which a party claims (change their personal name (suing as an individual) to their role?)

Answer 51

When a statement of case is confusing/vague the party will be ordered to: 1. Clarify any matter in dispute OR 2. Give additional info

Answer 52

1. They must serve a concise written request to the other party, allowing reasonable time for a response 2. The other party must respond in writing, dated and signed. This must be served on all parties, filed with the court and verified by a statement of truth

Answer 53

Apply to the court to grant an order

Answer 54

When a party needs to bring a particular matter to court before the actual trial but after litigation.

Answer 55

1. Ensure compliance with procedural matters 2. Request for more time 3. Assist in preparation for trial 4. Consider penalties

Answer 56

Mediation and Arbitration

Answer 57

Means of settling disputes outside of the traditional litigation process with an independent third party

Answer 58

To assist the parties in reaching their own solution but they cannot impose a solution

Answer 59

1. When it is obviously inappropriate (injunction is required) 2. The other party is unlikely to co-operate 3. The other party cannot be trusted to comply with an award

Answer 60

Must serve a witness statement giving reasons within 21 days of the ADR proposal. The witness statement should only be shown to the judge when the questions of costs arise

Answer 61

If it’s unreasonable, the court may impose costs sanctions

Answer 62

The other party. There is no presumption in favour of mediation

Answer 63

1. The nature of the dispute 2. The merits of the case 3. The extent to which other settlement methods have been attempted 4. Whether the ADR costs would be disproportionately high 5. Whether any delay in setting up and attending the ADR would be prejudicial 6. Whether the ADR had a reasonable prospect of success

Answer 64

That they explained to their client: 1. The need to try and settle 2. The available options 3. The possibility of costs sanctions if they refuse to attempt to settle

Answer 65

Trained to act neutral and have the appropriate industry/commercial knowledge

Answer 66

The parties must sent written statements to the mediator who will discuss the case with them on a ‘without prejudice’ basis

Answer 67

Yes. Any future judge will be unaware of the discussions

Answer 68

1. Cost and speed 2. Flexibility (no legal requirements so don’t have to comply with court rules) 3. Privacy 4. Preserving a business relationship 5. Commercial reality (arrangements a court could not order like discounts) 6. Ability to withdraw

Answer 69

1. Not helpful where you need a ruling on a point of law/injunction 2. Not useful for fraud/other commercially disreputable conduct 3. Disclosure (no formal procedure to disclose so you may resolve a dispute without knowing all the facts = unjustness 4. Privacy (lose opportunity to repair reputation) 5. Ability to withdraw (other party can leave against your wishes)

Answer 70

Agreements in mediation = contract = sue for breach

Answer 71

The Arbitration Act 1996 but this only applies to agreements to arbitrate in writing

Answer 72

May be specified in the original contract or the parties may choose their own. Once the arbitrator reaches their decision it’s binding

Answer 73

1. Faster and cheaper (minus cost of the arbitrator) 2. Procedures are less formal 3. Impartial third party with expertise 4. Privacy 5. Practical solutions 6. Binding

Answer 74

1. Dispute may not receive the depth of investigation it would in court 2. Certain remedies (injunction) unavailable 3. Not usually a cheap alternative 4. Binding decision has limited rights of appeal

Answer 75

A decision in arbitration can be enforced as if it were a court judgement whereas in mediation, the decision is not binding

Answer 76

They must pay the opponent’s costs

Answer 77

District judges

Answer 78

Circuit judges - County Court High Court judges - High Court

Answer 79

1. Parties must establish the issues in dispute 2. Must gather evidence to confirm the viability of the claim and success 3. C sends D a letter detailing the claim and D responds with a letter

Answer 80

Incur a sanction like reduction in recoverable costs

Answer 81

They serve a claim form on D with the full details of the claim (particulars) = court allocating matter to a track

Answer 82

File at court and serve C a defence.

Answer 83

The claim is ‘statute barred’ and the solicitor can face a negligence claim

Answer 84

C has 6 years from the date of the cause of action to commence proceedings with the limitation period starting the DAY AFTER - e.g: contract - cause of action accrues as soon as the breach occurs - tort - cause of action accrues when the tort is committed. (In Negligence this is when damage occurs as a = of the breach of duty)

Answer 85

As soon as the breach of contract occurs

Answer 86

When the tort is committed Negligence - when damage occurs as a result of a breach of duty

Answer 87

3 years from the date of the cause of action/date of knowledge of the person injured

Answer 88

Time limit starts from their 18th birthday

Answer 89

1. 6 years from the date of the cause of action 2. 3 years from the date of knowledge Whichever is later BUT NO LATER than 15 years after the date of the negligent act/omission

Answer 90

Important to check whether a different limitation period is specified in the contract (usually shorter than the 6 year period)

Answer 91

General rule is that actions commenced outside the limitation period which are raised as a defence by D aren’t allowed to proceed Extensions are only available in exceptional circumstances

Answer 92

The strict time limit imposed on C in which they can issue proceedings against D

Answer 93

C can still commence their claim but D will have a complete defence

Answer 94

If D establishes the claim as ‘statute barred’, the court wont allow actions commenced outside the limitation period to proceed Extensions

Answer 95

Both the employee and employer should be sued

Answer 96

They must have a litigation friend to act on their behalf (e.g: parent for minors) Any settlement reached is only valid if court approved

Answer 97

They must be able to fairly and competently conduct proceedings on behalf of the party and have no adverse interest

Answer 98

Hire an inquiry agent

Answer 99

1. A search at Companies House to ascertain information about the financial position of a company 2. A bankruptcy search of an individual 3. Instructing an inquiry agent 4. Use various internet search engines

Answer 100

Making a claim is possible but not viable

Answer 101

A claim for a fixed amount of money E.g: claim for debt owed like price of goods sold

Answer 102

Court has to investigate to determine the amount of money payable even if C puts forward some figures

Answer 103

Entire claim is treated as unspecified

Answer 104

Breach of express terms (debt claim or failure to deliver on time) Breach of statutory implied terms (goods supplied not of satisfactory quality as per Sale of Goods Act)

Answer 105

Medical/road traffic Negligent mis-statement (financial adviser gives inadequate advice to client)

Answer 106

Excessive noise from neighbour Nature causing damage to adjoining property (water flooding, trees)

Answer 107

Initiate and increase pre-action contact between parties to encourage earlier exchange of information = settling cases without litigation

Answer 108

1. Litigation should be a last resort 2. Parties should exchange sufficient information to - understand each other’s positions - make decisions on how to proceed - settle issues efficiently - cost-effective 3. The steps are - C writes to D with concise details of the claim - D responds within reasonable time - Parties disclose key docs 4. Only reasonable and proportionate steps should be taken to identify and resolve the issues 5. If still unresolved, they should see if they can narrow the disputed issues before proceedings 6. Court expects parties to have complied with the Practice Direction. Will be sanctioned if they haven’t

Answer 109

Order 1. Faulty party pays some/all of opponents costs 2. Faulty C deprived of some/all of the interest they may be awarded on recovered damages 3. Faulty D pays interest on awarded damages 10% per annum above base rate

Answer 110

May be subject to proceedings for contempt of court

Answer 111

Any business including sole traders and public bodies (the creditor) that brings a claim against a debtor including individuals or sole traders (the debtor)

Answer 112

Business to business debts UNLESS the debtor is a sole trader

Answer 113

Must give full information on the debt owed including - up-to-date statements of accounts with details of interest and charges - how the debt can be paid The standard Reply Form, Information Sheet and Financial Statement forms should be included

Answer 114

1. Preliminary Notice - a letter containing information about C, an outline of their grievance and indication of financial value of claim is sent to the professional 2. Letter of Claim - full details of issue and attach key documents 3. Letter of Response - Professional either admits allegations or refutes with documents (can send a Letter of Settlement too) 4. Stocktake - review position and narrow issues If denies claim and no Letter of Settlement, C can start court proceedings

Answer 115

1. Preliminary Notice - inform insurers immediately and acknowledge notice in writing within 21 days 2. Letter of Claim - acknowledge in writing within 21 days -> 3 months to investigate and respond 3. Letter of Response - can admit/deny and can send Letter of Settlement 4. Stocktake - review position and narrow down issues

Answer 116

In situations where an exclusive jurisdiction clause exists

Answer 117

contractually designates a specific court or legal forum as the only venue where disputes arising from a contract can be resolved

Answer 118

Yes unless they prove that the English courts are not the most appropriate for the dispute (e.g: accident in NY)

Answer 119

Court permission

Answer 120

1. Contract was made/breached in England/Wales, is governed by English law or contains an agreement conferring jurisdiction on the English courts 2. Tort - the act causing damage was committed in England/Wales or the loss was sustained here

Answer 121

When there is no specific protocol in relation to the particular dispute

Answer 122

It MUST start in the County Court

Answer 123

It MAY commence in the High Court. You have a choice

Answer 124

No, unless the claim value is $50,000 or more

Answer 125

- when the claim is more complex - when the outcome is important to the general public

Answer 126

County Court Money Claims Centre (both specified and unspecified)

Answer 127

Online claims for specified sums up to $100,000 using the website Money Claims Online

Answer 128

Summary of the important aspects of the claim (substantive law and the facts)

Answer 129

1. The Queen’s Bench Division (contract and tort) 2. The Chancery Division (land, trusts, inheritance, company law, partnership claims) 3. The Family Division (divorce and adoption)

Answer 130

1. A claim form 2. Particulars of claim 3. Documents that need to be annexed by the CPR

Answer 131

Full unabbreviated names and title

Answer 132

Individuals who engage in business Full name and if they use a business name this should be included

Answer 133

A formal arrangement where multiple parties manage a business and share profits Name of the firm, not the individuals

Answer 134

Correct registered name and address must be stated and should be checked through a company search

Answer 135

The precise figure including the accrued interest

Answer 136

‘C expects to recover more than $100,000 / $50,000 (personal injury)’

Answer 137

Whether they expect to recover: - not more than $10,000 - $10,000 to 25,000 - more than $25,000 OR They cannot say how much they expect to recover

Answer 138

- Possible awards of interest/costs - Contributory Negligence - Counterclaims

Answer 139

County Court Money Claims Centre Claim will be transferred to - D’s home County Court OR - C’s preferred hearing centre (state in claim form)

Answer 140

An estimate of what C expects to recover

Answer 141

- any of the partners/persons having management of the business - A person holding a senior position can sign on behalf of the company

Answer 142

- Client has authorised them to do so - They have explained to the client that in signing the statement, they are confirming client’s belief that the facts stated in the document are true - Client was warned of the possible consequences (contempt of court) if they don’t have an honest belief in these facts.

Answer 143

Court may strike out the document and if not, C is still precluded from relying on its contents

Answer 144

An existing party or someone who wants to become a party BUT you can’t be added/substituted as a C unless their consent in writing has been filed at court

Answer 145

Yes, unless the claim form has NOT been served

Answer 146

Can only be done if the limitation period was current when proceedings were started AND The original party was: - named by mistake - died - bankruptcy order - claim needs the new party

Answer 147

Within 4 months

Answer 148

Only if D has nominated them in writing

Answer 149

Personally on the party

Answer 150

Under CPR, r.63 1. Personal service 2. 1st class post/document exchange 3. Leaving the claim form at a specified place 4. Fax/other electronic communications 5. Any other method authorised by the court

Answer 151

Individual - simply handing it to them. Left with them (if they refuse) Partnership - Left with a partner / person who has control/managment of the partnership at its principal place of business Company - Left with a person with a senior position (director, secretary etc)

Answer 152

No, must have expressly confirmed that they are willing to accept service in this way Yes for fax number but not for email (must expressly confirm)

Answer 153

1. Usual / last known residence 2. Usual / last known residence of the individual OR principal / last known place of business 3. “ 4. Principal office of the partnerships / any place of business within the jurisdiction that has a real connection with the claim 5. “ (of the company) “

Answer 154

1. Date when personal service/delivery was made at the relevant place 2. Date when posted / left with DX provider 3. Date of transmission / when email sent

Answer 155

To avoid disputes about when documents were served, documents are taken to have arrived on a given day regardless of whether they actually did

Answer 156

Claim form is deemed to have been served on the 2nd business day after the step required has occurred

Answer 157

1. Personal service, Delivering documents to a permitted address, Fax, Email: A) If served before 4:30 pm on a business day then on that day B) If not, then on the next business day 2. 1st class post / DX A) the 2nd day after it was posted provided that day is a business day B) if not then on the next business day

Answer 158

Either at the same time as the claim form OR Within 14 days after service of the claim form but not later than 4 months after the date of issue of the claim form

Answer 159

Yes, unless a contract contains an English jurisdiction clause

Dispute Resolution Flashcards

(192 cards)