Dispute Resolution WS 1 Prep
Pre-action Conduct
Litigation last resort
ADR – mediation /arbitration clause in contract?
If a specific pre-action protocol applies it conflicts with the provisions of the Practice
Direction, follow specific protocol
Enables parties to get info to settle matter early / lay foundations for efficient proceedings.
Parties should take stock of their position, not just press ahead
Court decides whether non-compliance with pre-action protocol merits consequences.
Likely relate to costs
Court may stay the proceedings until relevant steps taken.
Court considers overall effect of the non-compliance - unlikely sanctions for minor
infringements.
Court can ask for an explanation of non-compliance.
Acceptable not to comply with pre-action requirements:
Limitation period about to expire - parties must comply to extent possible - usually will need
to apply for stay of proceedings after issue so pre-action procedure can be followed.
Need element of surprise. e.g., search order - 'unannounced' visit to opponent's premises -
Fear opponent will destroy documents
PI claims pre-action protocol – PI claims, that don’t fall w/i another protocol, likely to be
allocated to fast tract (up to 25,000)
- Cl write letter of notification to potential D – brief details
- Parties consider any rehabilitation needs and how to address them
- Cl write to D giving full details - letter of claim
- D acknowledge it w/i 21 days
- D send letter in response w/i 3 months
- If denied – parties should disclose docs, negotiate, try settle
- Get expert
Practice Direction
- Cl writes letter to potential D – details of claim
- W/i reasonable time D should respond – accept or reject giving reasons - could be
b/w 14 days and 3 months depends on claim
- Parties disclose docs, negotiate, try settle
-> Parties supposed to behave reasonably in spirit of practice direction/ pre-action protocol
Commencing and Serving Proceedings
Cl decides to bring a claim
,Which court to issue the claim?
Non PI claims up to £100,000 = County Court.
Non PI claims over £100,000 = either court.
Personal Injury claims less than £50,000 = County Court.
PI claims £50,000 or more = either court.
Value of the claim= how much you expect to recover (disregard interest, costs etc)
Choice b/w courts? - Claim should be commenced where it is likely to be tried.
High Court b/c:
(1) value of claim
(2) complex case
(3) public importance
e.g., A sells 175,000 of timber to B. B doesn’t pay. Could take case to either court. But not
complex / public interest – might conclude County Court is appropriate
Transfer between courts
Court disagrees with Cl’s choice, court may transfer case
Same factors – also whether specialist judge is available and facilities at court if disabled
Court may order Cl to pay costs for this transfer
If case continues in High Court when should have been County Court - costs awarded in
claim can be deducted up to 25% - court's discretion
To issue a claim at court, take or send to court:
Copies of claim form to be issued and sealed – copies for e/o
Court issue fee
Issuing claim stops limitation period running – court stamps date of issue on claim form
4 months to do relevant step to serve claim form – o/w must start new claim (you lose
original fee) - e.g., post it, send email.
If you have issued new claim form check still in limitation period – check date of issue
against when limitation period runs out
Limitation period = 6 years from breach of contract, in torts 6 years from when the damage
occurs (e.g., used negligent audit report day you receive it and act on it), 3 years for PI cases
e.g., client only becomes aware they are injured when he goes doctor – this is when
limitation period runs from - Date of knowledge of injury, or date of injury – w/e is later
Claims in the county court for money should be issued in the County Court Money Claims
Centre
County Court money claims can be issued using ‘Money Claim Online’ for up to £100,000
against no more than two defendants.
,Not money-only claims issued at any of the County Court Hearing Centres
Users who issue many claims (eg utility companies) can become registered users at the
Northampton County Court Business Centre - for bulk users
The claim form
If court serves claim form, send claimant a notice of issue stating deemed date of service.
If the court is unable to serve, claimant sent a notice of non-service.
Then up to Cl to serve the claim form
If claimant wishes to serve the claim form - notify court when issuing claim form they don’t
want court to serve it
Cl’s solicitor must file a certificate of service at court within 21 days of service – details when
claim was delivered/ transmitted / method / address used
Not necessary if all defendants have filed an acknowledgment of service within that time.
Service of claim form
Personal service - Physically serve claim form on them (appropriate person if company)
Leave document at permitted address – if D gives solicitors address use this. If don’t use last
residence/ place of business
First class post (always first class*) or Document Exchange (DX) - delivery on next business
day
Service by fax - Only if D has indicated this is acceptable
Email - Only permitted if D indicated it will accept this service
Where an address is needed, when responding to the claim D must give an address at which
documents may be served going forwards - use this going forward
If can’t serve claim form w/i time limit, apply for extension within four-months claim form is
valid - show good reasons
Waiting for evidence or a response from D to pre-action correspondence not a good reason.
If made after deadline for service of the claim form, court will grant an extension only if:
- It’s the court that has failed to serve
- Cl taken reasonable steps to comply / application made promptly.
Mistakenly serving D’s insurers or solicitors when service is required on the defendant
unlikely get an extension – issue claim form again + court fee
Particulars of claim
Sets out claimants story – duty breach causation loss/ witness statement
When served include response pack – form for admission/defence/acknowledgement of
service
, Can serve PofC with claim form (inserted in claim form in same doc) or separately
N.b. if just says served together – PofC can be deemed served on different day to claim form
– but prudent to presume they are served together - prudent to go with earliest start date
If not served with the claim form, got 14 days to serve it from service of the claim form (also
w/i the 4 months of validity of the claim form)
Once served, Cl must file a copy at court within 7 days of service, unless already filed
Deemed Date of Service of PofC is start date
Deemed date of service of claim form
Deemed served on the second business day after completion of the relevant step
'Business day' = not Saturday, Sunday, bank holiday, Good Friday or Christmas day
Should keep a record of date the claim form was dispatched - might be challenged.
Service of the particulars of claim
If PofC in the claim form rules on deemed service above apply
If PofC are attached to or served with the claim form in a separate document in the same
envelope best to assume the particulars are served at the earliest date.
If particulars of claim are served separately from the claim form ie served within 14 days
after service of the claim form – same rules for all other documents except claim form
Deemed date of service of documents other than the claim form
Instant methods - (personal service, fax, email, delivering / leaving at a permitted address)
If done before 4.30pm on a business day deemed served the same day
Otherwise the next business day
e.g., Claim form and PofC served by personal service at 2pm Monday 5th july
Prudent to served defence by 19th July – presume PofC served separate so deemed served
same day on 5th
Non instant methods - Post / DX
Deemed served second day after if a business day.
Otherwise deemed served the next business day
Statements of Case
Formal case heading at the top, and a statement of truth at the end.
The rest of the contents will be set out in a uniform manner as prescribed by the rules.
Costs consequences for parties who serve deficient statements of case
Case heading
Pre-action Conduct
Litigation last resort
ADR – mediation /arbitration clause in contract?
If a specific pre-action protocol applies it conflicts with the provisions of the Practice
Direction, follow specific protocol
Enables parties to get info to settle matter early / lay foundations for efficient proceedings.
Parties should take stock of their position, not just press ahead
Court decides whether non-compliance with pre-action protocol merits consequences.
Likely relate to costs
Court may stay the proceedings until relevant steps taken.
Court considers overall effect of the non-compliance - unlikely sanctions for minor
infringements.
Court can ask for an explanation of non-compliance.
Acceptable not to comply with pre-action requirements:
Limitation period about to expire - parties must comply to extent possible - usually will need
to apply for stay of proceedings after issue so pre-action procedure can be followed.
Need element of surprise. e.g., search order - 'unannounced' visit to opponent's premises -
Fear opponent will destroy documents
PI claims pre-action protocol – PI claims, that don’t fall w/i another protocol, likely to be
allocated to fast tract (up to 25,000)
- Cl write letter of notification to potential D – brief details
- Parties consider any rehabilitation needs and how to address them
- Cl write to D giving full details - letter of claim
- D acknowledge it w/i 21 days
- D send letter in response w/i 3 months
- If denied – parties should disclose docs, negotiate, try settle
- Get expert
Practice Direction
- Cl writes letter to potential D – details of claim
- W/i reasonable time D should respond – accept or reject giving reasons - could be
b/w 14 days and 3 months depends on claim
- Parties disclose docs, negotiate, try settle
-> Parties supposed to behave reasonably in spirit of practice direction/ pre-action protocol
Commencing and Serving Proceedings
Cl decides to bring a claim
,Which court to issue the claim?
Non PI claims up to £100,000 = County Court.
Non PI claims over £100,000 = either court.
Personal Injury claims less than £50,000 = County Court.
PI claims £50,000 or more = either court.
Value of the claim= how much you expect to recover (disregard interest, costs etc)
Choice b/w courts? - Claim should be commenced where it is likely to be tried.
High Court b/c:
(1) value of claim
(2) complex case
(3) public importance
e.g., A sells 175,000 of timber to B. B doesn’t pay. Could take case to either court. But not
complex / public interest – might conclude County Court is appropriate
Transfer between courts
Court disagrees with Cl’s choice, court may transfer case
Same factors – also whether specialist judge is available and facilities at court if disabled
Court may order Cl to pay costs for this transfer
If case continues in High Court when should have been County Court - costs awarded in
claim can be deducted up to 25% - court's discretion
To issue a claim at court, take or send to court:
Copies of claim form to be issued and sealed – copies for e/o
Court issue fee
Issuing claim stops limitation period running – court stamps date of issue on claim form
4 months to do relevant step to serve claim form – o/w must start new claim (you lose
original fee) - e.g., post it, send email.
If you have issued new claim form check still in limitation period – check date of issue
against when limitation period runs out
Limitation period = 6 years from breach of contract, in torts 6 years from when the damage
occurs (e.g., used negligent audit report day you receive it and act on it), 3 years for PI cases
e.g., client only becomes aware they are injured when he goes doctor – this is when
limitation period runs from - Date of knowledge of injury, or date of injury – w/e is later
Claims in the county court for money should be issued in the County Court Money Claims
Centre
County Court money claims can be issued using ‘Money Claim Online’ for up to £100,000
against no more than two defendants.
,Not money-only claims issued at any of the County Court Hearing Centres
Users who issue many claims (eg utility companies) can become registered users at the
Northampton County Court Business Centre - for bulk users
The claim form
If court serves claim form, send claimant a notice of issue stating deemed date of service.
If the court is unable to serve, claimant sent a notice of non-service.
Then up to Cl to serve the claim form
If claimant wishes to serve the claim form - notify court when issuing claim form they don’t
want court to serve it
Cl’s solicitor must file a certificate of service at court within 21 days of service – details when
claim was delivered/ transmitted / method / address used
Not necessary if all defendants have filed an acknowledgment of service within that time.
Service of claim form
Personal service - Physically serve claim form on them (appropriate person if company)
Leave document at permitted address – if D gives solicitors address use this. If don’t use last
residence/ place of business
First class post (always first class*) or Document Exchange (DX) - delivery on next business
day
Service by fax - Only if D has indicated this is acceptable
Email - Only permitted if D indicated it will accept this service
Where an address is needed, when responding to the claim D must give an address at which
documents may be served going forwards - use this going forward
If can’t serve claim form w/i time limit, apply for extension within four-months claim form is
valid - show good reasons
Waiting for evidence or a response from D to pre-action correspondence not a good reason.
If made after deadline for service of the claim form, court will grant an extension only if:
- It’s the court that has failed to serve
- Cl taken reasonable steps to comply / application made promptly.
Mistakenly serving D’s insurers or solicitors when service is required on the defendant
unlikely get an extension – issue claim form again + court fee
Particulars of claim
Sets out claimants story – duty breach causation loss/ witness statement
When served include response pack – form for admission/defence/acknowledgement of
service
, Can serve PofC with claim form (inserted in claim form in same doc) or separately
N.b. if just says served together – PofC can be deemed served on different day to claim form
– but prudent to presume they are served together - prudent to go with earliest start date
If not served with the claim form, got 14 days to serve it from service of the claim form (also
w/i the 4 months of validity of the claim form)
Once served, Cl must file a copy at court within 7 days of service, unless already filed
Deemed Date of Service of PofC is start date
Deemed date of service of claim form
Deemed served on the second business day after completion of the relevant step
'Business day' = not Saturday, Sunday, bank holiday, Good Friday or Christmas day
Should keep a record of date the claim form was dispatched - might be challenged.
Service of the particulars of claim
If PofC in the claim form rules on deemed service above apply
If PofC are attached to or served with the claim form in a separate document in the same
envelope best to assume the particulars are served at the earliest date.
If particulars of claim are served separately from the claim form ie served within 14 days
after service of the claim form – same rules for all other documents except claim form
Deemed date of service of documents other than the claim form
Instant methods - (personal service, fax, email, delivering / leaving at a permitted address)
If done before 4.30pm on a business day deemed served the same day
Otherwise the next business day
e.g., Claim form and PofC served by personal service at 2pm Monday 5th july
Prudent to served defence by 19th July – presume PofC served separate so deemed served
same day on 5th
Non instant methods - Post / DX
Deemed served second day after if a business day.
Otherwise deemed served the next business day
Statements of Case
Formal case heading at the top, and a statement of truth at the end.
The rest of the contents will be set out in a uniform manner as prescribed by the rules.
Costs consequences for parties who serve deficient statements of case
Case heading
