Summarises everything you need to know for Dispute Resolution.
Carefully curated summary notes, aligned precisely with SRA guidelines, comprehensive and also tailored to the specifics of the SQE exam. Organised meticulously by sections and sections and subsections following SRA specifications.
Dispute Resolution
Table of Contents
Different options for dispute resolution:...................................................................................................1
Resolving a dispute through a civil claim:.................................................................................................2
Where to start proceedings:.....................................................................................................................7
Issuing and serving proceedings:..............................................................................................................7
Responding to a claim:............................................................................................................................11
Statements of case:................................................................................................................................14
Interim applications:...............................................................................................................................15
Case management:.................................................................................................................................17
Evidence:................................................................................................................................................19
Disclosure and inspection:......................................................................................................................20
Trial:.......................................................................................................................................................23
Costs:......................................................................................................................................................25
Appeals:.................................................................................................................................................27
Enforcement of money judgments:.........................................................................................................28
Different options for dispute resolution:
The characteristics of arbitration, mediation and litigation which make them an
appropriate mechanism to resolve a dispute
Litigation
- Only available as a last resort
- Negotiation and settlement can happen at any time
- Negotiations discussions are conducted without prejudice and are privileged
Alternative Dispute Resolution
- CPR dictate ADR and Litigation practice
- Lawyers have a duty to make clients aware of ADR
- ADR is voluntary but it is unacceptable for a party to fail to respond to an ADR request
o The failing party must give reasons
o If they fail to give reasons, the court can penalise them in respect of costs (most commonly
through an order to pay the other party’s legal costs, wholly or partly, irrespective of who wins
the claim)
- Even once proceedings have begun, the parties can always consider ADR
Arbitration
- Commonly used for large value complex contracts and international commercial agreements
o More easily enforceable internationally than litigations
- Contracts may state that parties will use arbitration to settle disputes
- Decision of arbitrator is final and can be enforced
- Once the parties agree to arbitrate they must follow the process unless both parties agree to another
method
- Very limited methods of appeal
,Mediation
- Informal, confidential and voluntary
- Rules of evidence do not apply, the parties can bring up feelings etc.
- Non-binding until a final written settlement agreement has been signed
- Can occur at any time before or during proceedings
Litigation Mediation Arbitration
Voluntary N Y Y (but often contractual)
Binding Y (subject to appeal) Enforceable by Y
settlement contracts
Who decides outcome Judge Chosen 3rd party Specialist arbitrator
Formal proceedings Y N Y
Evidence rules Strict N Statements of case,
written submissions,
documents
Imposed outcome Y Mutually accepted Y
Public Y N N
Resolving a dispute through a civil claim:
Preliminary Considerations: limitation, pre-action protocols:
Limitations
Claim type Limitation period
Longstop for latent defects 15 years
Breach of contract 6 years
Tort 6 years
Personal injury 3 years
Fatal accident claims 3 years
Defamation 1 year
Unfair dismissal 3 months
Pre-action Protocols
Practice Direction
- Used where there is no specific pre-action protocol already existing
Personal Injury Protocol (not for clinical negligence)
- For fast track claims (up to £25k)
- Letter of claim must include:
o Summary of the facts
o Details of injuries and their impact on claimant’s life
o Hospital attended and a reference number
o Indication of financial losses
o (for road traffic accidents, an indication if a police report is available and any documents to be
relied on, documents in the defendant’s possession should be given within 21 days)
- Defendant’s response within 21 days, if not response is given, claimant can begin proceedings
- After giving a response, defendant has 3 months to investigate the claim and admit/deny liability
- Claimant sends a list of possible experts to defendant who has 14 days to agree/disagree
- If protocol fails to achieve a settlement, proceedings can be issues at least 21 days after failure
, Construction and Engineering Protocol
- Can be disapplied by the parties by agreements
Sanctions for Non-Compliance
- ordering the non-compliant party to pay the costs of the other
- If the non-compliant party is the claimant, court may deprive them of interest / restrict the rate or
period of interest
Stay of Proceedings
- Done to allow the practice direction or a particular step to be complied with
When to Issue Proceedings before Pre-Action Protocol is Complete
- When the end of the limitation period is close and it is necessary to issue proceedings to avoid the
claim becoming statute barred
- Where a court order is required to protect / preserve evidence or assets
- Where there is concern that the defendant may seek to issue proceedings in another country to avoid
jurisdiction
Pre-Action Applications
- It may be appropriate to make an application to the court for pre-action disclosure if it would be
necessary for full investigation, the criteria are:
o Respondent is likely to be a party to proceedings
o Applicant is likely to be a party to proceedings
o Documents, or classes of documents, requested would be disclosed under standard disclosure
rules
o Disclosure now would assist in fairly disposing of the claim without the need to issue proceedings
and save costs
- Pre-disclosure applications can be brought against someone who isn’t a party but only if it will support
the claim or adversely affect the opponents argument and is necessary to dispose of the matter fairly
or to save costs
Pre-Action Inspection of Property
- Must be able to show:
o The property is or may become the subject matter of proceedings, or
o It is relevant to the issues that will arise in relation to those proceedings
Parties and Causes of Action
- Parties in a civil case are referred to as Claimant and Defendant
- In any pre-action or interim application, parties are referred to as Applicant and Respondent
- In any appeal, appealing party is referred to as Appellant
- Civil causes of action include all those causes of action that fall outside of criminal law jurisdiction
Calculating Limitation Periods for Claims in Contract and Tort
Tort
- Time begins running from date of tortuous damage
- If claimant’s injuries are not immediately apparent, time begins when they first gain knowledge of their
injuries
o Date of knowledge = date when the claimant had knowledge of all the facts establishing all
essential elements of a claim
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