1
Q
non-compliance with pre-action protocols is most likely to impact
A
costs and interest
2
Q
Civil Litigation is governed by the
A
Civil Procedure Rules (CPR)
3
Q
Who manages the conduct of civil proceedings?
A
the court, not the parties
4
Q
District judges have jurisdiction to hear trials where the amount involved does not exceed
A
£25,000
5
Q
Trials in excess of £25,000 are heard by
A
Circuit judges in the County Court and by High Court judges in the High Court.
6
Q
Main considerations pre-action
A
(a) Can the claim be brought at all, or is it out of time?
(b) Who are the parties? Do any safeguards need to be considered?
(c) Does D have the means to pay a judgment?
(d) What are the merits of the case?
(e) What steps must be taken before proceedings can be brought?
7
Q
Pre-trial steps
A
(1) consider viability of claimant’s case and prospects of success
(2) gather evidence
(3) address costs and recommend ADR
(4) share info with the other side and endeavour to resolve without litigation
(5) send a letter before claim to D
8
Q
What steps can C take to check that D would be able to pay?
A
- a bankruptcy search of an individual;
- a search at Companies House if a company;
- instructing an inquiry agent (although the costs of this must be considered); and
- internet and media sources.
9
Q
What pre-action steps are advisable across all protocols?
A
(a) C should write to D with concise details of the claim in a letter before claim);
(b) D should respond within a reasonable time with a letter of response; and
(c) the parties disclosing key documents relevant to the issues in dispute.
10
Q
Who generally pays for costs on discontinuance?
A
claimant
11
Q
reasons to justify non-compliance with pre-action conduct
A
- limitation period is about to expire;
- urgent proceedings;
- element of surprise
12
Q
Do PI cases exceeding threshold for fast track need to follow Pre-Action Protocol for PI claims?
A
No but the ‘spirit’ of the protocol should be followed in higher value claims
13
Q
1st stage of Pre-action Protocol for Personal Injury Claims
A
Claimants should write a Letter of Notification to potential defendants
14
Q
For a PI claim, the defendant must acknowledge Letter of Claim within
A
21 days
15
Q
For a PI claim, defendant must send full Letter of Response within
A
3 months
16
Q
pre-action conduct requires that defendants send a response letter within
A
a reasonable period
17
Q
when calculating value of a claim, you should disregard
A
interest
18
Q
a claim should be started in the High Court by reason of (4)
A
financial value, complexity, importance of outcome to the public, if they want a High Court Judge
19
Q
sanction for wrongly beginning a matter in the High Court when it should have been issued in the County Court
A
any costs awarded in the claim can be deducted by up to 25% at the court’s discretion
20
Q
Claim form
A
Form N1
21
Q
County Court Money claim online service can only be used for
A
claims with a value up to £100,000 which are against max. 2 defendants
22
Q
Who can serve the claim form?
A
The court; or
The claimant / claimant’s solicitor
23
Q
Main considerations in relation to service of the claim form
A
a) Who will effect service?
b) How should service be effected?
c) When must the claim form be served?
24
Q
If the claimant / claimant’s solicitor wishes to serve the claim form, what steps must they take?
A
(1) They must notify the court when issuing the claim form that they do not wish the court to serve it.
(2) The court will give or send the claimant / claimant’s solicitor the issued claim form with sealed copies for service on the defendant(s).
(3) The claimant effects service
(4) The claimant’s solicitor must then file a certificate of service at court within 21 days of service
25
When is it not necessary for claimant/claimant's solicitor to file a certificate of service?
if all of the defendants have filed an acknowledgment of service within that time
26
service of the claim form must be
effective and valid
27
DX provides for delivery on
the next business day
28
Service by fax or other electronic method is only permitted
if the defendant has indicated it will accept service this way
29
Deadline for serving the claim form after date of issue
midnight 4 months after the date of issue of the claim form
30
When are proceedings started?
when the court issues a claim form at the request of the claimant (date of issue)
31
What happens if claimant does not serve claim form within this time but still wishes to pursue the claim?
C will need to issue a new claim and pay the court fee again (however, they can apply for an extension within the 4-month period of validity of the claim form and must give good reasons)
32
Making an application for an extension to serve the claim form should be made within
the 4-month period of validity of the claim form and the claimant needs good reasons
33
When will the court allow an application to extend the permission to serve the claim form that is made after the 4 month deadline?
the court will grant an extension if:
(a) the court failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply; and
(c) either way, the application has been made promptly
34
The response pack (Form N9) contains
Form of admission, form for defending, form for acknowledging service
35
If particulars of claim are not contained in or served with the claim form, they must be served within
14 days of service of the claim form
36
Once the particulars of claim are served, the claimant must file a copy at court within
7 days of service
37
When is a claim form deemed served?
on the second business day after completion of the "relevant step" (if the relevant step is taken on a business day, this is counted)
38
Deemed date of service for instant methods
served the same day if before 4.30, otherwise deemed served the next business day
39
Deemed date of service, not instant method
deemed served second business day
40
every statement of case must be headed with
the title of proceedings
41
What must be included in the case heading?
- the court and/or division
- the full names of both parties
- the party's status in the proceedings
- the case number
42
Where the claimant is making a claim for money, the claim form must include a statement of
the amount claimed
43
every statement of case needs a statement of
truth
44
In a personal injury claim, the claimant must state whether the amount which the claimant expects to recover for PSLA
is more than £1500
45
What is not included in the particulars of claim?
evidence - Evidence is provided at a later stage (primarily through exchange of documents and witness statements).
46
Two methods of setting out an interest claim
a) exact calculation of the amount of interest claimed
b) pleading interest generally
47
Interest in personal injury claims where damages over £200 are awarded
some interest must be awarded unless there are special reasons for not doing so
48
Before the final formalities, the particulars of claim closes with
'the prayer'
49
the 'prayer'
closes the particulars of claim and contains a summary of the remedies sought by the claimant
50
Claim based on written agreement
must attach the written agreement
51
Personal injury claim must include
C's DOB, injuries, schedule of past and future expenses and any medical expert report
52
when a statement of case has been served, the party may amend it only with 2 forms of consent, which are?
a) with the written consent of all the other parties; or
b) with the permission of the court
53
Non-PI claims over 100K can be issued in either
High Court or County Court, depending on value and complexity
54
period for the defendant to respond starts to run from
when the particulars of claim are served
55
when following the PD on Pre-Action Conduct, the defendant should respond to the initial letter of claim within
a reasonable time – 14 days in a straightforward case and no more than 3 months in a very complex one
56
What steps must the defendant take to follow the pre-action protocol for personal injury claims?
Defendant to acknowledge Letter of Claim within 21 days.
Defendant to investigate and send full Letter of Response within 3 months of letter.
57
Preliminary notice - Professional negligence protocol
written notification to professional as soon as claimant decides there is a 'reasonable chance' it will bring a claim
58
For a professional neg claim, the defendant should send a letter of acknowledgement within
21 days
59
max. length of investigations period in professional negligence claim
3 months but the parties can agree to extend
60
if the professional makes an offer to settle and/or admits part of the claim, the parties should aim to resolve the dispute within
6 months of the letter of acknowledgement
61
How many days notice should be given to a professional before issuing court proceedings?
14 days notice
62
additional requirement for the claimant to state what they expect to recover in a personal injury claim
the claimant must state in the claim form whether the amount which the claimant expects to recover as general damages for PSLA is more or less than £1,000
63
A solicitor is to issue a claim on behalf of her client arising out of a building construction dispute. In which court should the claim be issued?
The designated County Court hearing centre for Technology and Construction Court claims
64
where the claim form is to be served on a company registered in England and Wales and no address for service has been provided, where should the claim form be served?
on the company's registered office
65
What should you do after agreeing with the claimant's solicitors to extend time for filing the defence?
Write to the court notifying them of the agreed extension
66
How much notice should be given to a professional if C decides to proceed with professional negligence claim?
14 days notice of court proceedings
67
For general Practice Direction, D should send a letter of response within a
'reasonable period' (anywhere from 14 days - 3 months)
68
Allocation for Personal Injury claims of £50K or more
High Court OR County Court
69
Allocation for a claim over £100,000
High Court OR County Court
70
A claim should be started in the High Court if by reason of
by reason of:
a) financial value;
b) complexity of facts, legal issues etc. and/or
c) the importance of the outcome of the claim to the general public
71
value of a claim
its financial worth (not including interest or costs)
72
If the claim form is to be issued in the High Court, it must state that the claimant expects to recover more than
£100,000
73
If the court transfers the case between courts, what order may they make?
The court may order the claimant to pay the transfer costs
74
the claim form, particulars of claim (if not included in claim form), defence, Part 20 claim and reply to defence are all included in the
Statements of Case
75
first statement of case
the claim form
76
Main statement of case
Particulars of claim
77
What is included in the statements of case?
the claim form, particulars of claim (if not included in claim form), defence, Part 20 claim and reply to defence
78
All statements of truth begin
"I understand that..." (first person)
79
In personal injury claims, the particulars should include the
claimant's DOB, details of their injuries, attach a schedule of past and future expenses losses and the report of any expert medical practitioner which is relied on
80
Where the claim is based on a written agreement, it should be
attached to the POC
81
Why do claimants have a right to claim interest on the principal amount being claimed?
to compensate for the delay in receiving the money due to them
82
the legal basis for claiming interest can be either:
set out in a contract between the parties or, failing that, there is a statutory right to interest
83
In what claims MUST interest be awarded?
debt claims where the defendant pays the whole debt during the proceedings (however, amount of interest still within court's discretion)
84
Format for statement of truth being made on behalf of a company
The Claimant believes that the facts stated in these particulars of claim are true. The Claimant understands that proceedings for contempt of court maybe 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. I am duly authorised by the Claimant to sign this statement.
85
deemed date of service relates to service of which document?
the particulars of claim
86
General rule for the period for filing a defence is
a) 14 days after service of the particulars of claim; or b) If the defendant files an acknowledgement of service, 28 days after service of the particulars of claim
87
If a solicitor has been instructed to accept service of proceedings, where can you serve the claim form?
at the solicitor's business address only (no other method of service is permissible)
88
a party may amend their statement of case at any time before it has been served on any other party, even if it has been
filed at court
89
When would a claimant make a Part 8 claim?
where they seek the court's declaration on a question which is unlikely to involve a substantial dispute of fact
90
What kind of judgment cannot be given for a Part 8 claim?
default judgment NOT possible for Part 8 claim
91
What must the claimant show to obtain default judgment?
time has expired for filing an acknowledgment of service or admitted/denied the claim OR made an application for summary judgment
92
DDS for documents served by first class post
second business day after posting
93
Limitation long-stop for a latent damages claim
15 years from the date the negligent act took place
94
the fast track is the normal track for any claim which has a value of not more than £25,000 but only if the trial is likely to last no longer than
one day
95
When should a case be allocated to the intermediate track?
where the claim is suitable for neither the small claims track nor the fast track, the claim includes a claim for monetary relief, the value of which is not more than £100,000, the court considers that if the case is managed proportionately, the trial will not last longer than three days and the oral expert evidence at trial is likely to be limited to 2 experts per party.
96
When does the DDS vary according to the method of service chosen?
for service of documents other than the claim form
97
Instant methods
personal service, fax, email, delivering/leaving at a permitted address
98
Instant methods if done before 4:30pm on a business day
deemed served the same day
99
Instant methods - not done before 4:30pm
deemed served the next business day
100
Not instant methods
DX/Post
101
When is the Claim Form deemed served?
on the second business day after completion of the "relevant step"
102
Post is always deemed served on the
second business day after the relevant step
103
The issuing of which document begins the claim?
the claim form
104
If the court is unable to serve the claim form for any reason, the claimant will be sent a
notice of non-service
105
Within 21 days of service of the claim form, the claimant’s solicitor must file a
certificate of service, certifying details of the date on which the claim was posted/delivered/transmitted and the method and address used (CPR 6.17).
106
PSLA
pain, suffering and loss of amenity
107
If the claimant has a choice whether to issue the claim in the County Court or High Court, and they choose the High Court, what must they include in the claim form?
a special ‘jurisdictional endorsement’
108
In relation to a claim for money, if the claim form is to be issued in the High Court it must state that:
(a) the claimant expects to recover more than £100,000;
(b) state that some other enactment provides that the claim may be commenced only in the High Court and specify that enactment;
(c) if the claim is a claim for personal injuries state that the claimant expects to recover £50,000 or more; or
(d) state that the claim is to be in one of the specialist High Court lists and state which list
109
Purpose of the particulars of claim
claimant’s main statement of case
110
Where there is a mixture of specified and unspecified losses, the claim is
unspecified
111
When may the court permit an alternative method of service?
where there is good reason to do so and the method chosen will bring the commencement of proceedings to the attention of the person to be served
112
What advice would you give to a litigation friend?
They must be able to:
- fairly and competently conduct proceedings on behalf of the party;
- have no adverse interest in acting; and
- be able to give an undertaking to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings.
113
any settlement reached involving a child or a protected party will only be valid if
approved by the court
114
Remoteness in contract claims - an aggrieved party can only recover losses where were in the
parties’ reasonable contemplation at the time the contract was formed
115
Purpose of the Practice Direction Relating to the Use of the Welsh Language in Cases in the Civil Courts
to ensure that the Welsh and English languages are treated equally
Dispute Resolution
flashcards
Decks in class (19)
# Cards
-
DR Pre-Module36
-
ADR47
-
Pre-Action Conduct115
-
Responding to a claim79
-
Additional claims and changing parties67
-
Interim Applications143
-
Case management and costs171
-
Disclosure and Inspection101
-
Jurisdiction and choice of law58
-
Witness evidence58
-
Expert evidence58
-
Part 36 offers44
-
Trials and Enforcement96
-
Appeals33
-
Modes of Address/Courtroom19
-
Forms used for DR22
-
Legal Drafting - DR60
-
Costs27
-
Limitation8
