2020/21 –
LPC Notes -
Dispute Resolution
For
(Distinction Grade)
, 2020/21 –
LPC Notes -
Dispute Resolution
For
(Distinction Grade)
, Always Apply to the Facts, and Give Advice/Conclude
Breach of Contract Negligence Misrepresentation Negligent Misstatement
• Contract exists • Duty of care • False statement of • Duty of care
• Implied/express term • Breach of duty fact between parties
• Breach • Causation • Relied upon • False statement by X
• Consequences • Loss • Induced other party to Y
• Loss • Mitigation into contract • Reliance on
• Remoteness • Remoteness • Causation statement by Y
• Mitigation • Loss • Loss
• Mitigation • Mitigation
• Remoteness • Remoteness
Difference the two = Misrepresentation requires a contract;
negligent misstatement only requires a DoC (higher evidential
burden for Claimant)
Timeline for Entire Multi-Track Case
Who does it?
Pre- Initial instructions:
Commencement • Pre-action steps: conduct, identify client’s objectives, locate parties,
check financial viability of D, check jurisdiction, ascertain limitation
periods, discuss funding, preserve evidence, legal research, case
analysis, letter of advice to client, comply with PD-PAC/PN-PAP,
keep client informed, consider part 36 offer.
• Important = Case analysis (on-going)
o Potential causes of action, factual issues, success
likelihood, further evidence needed
Commencement Letter before claim (C’s Solicitors → D’s Solicitors), presents C’s case to D.
of Action D may write a letter of response
Statements of case:
• C files and serves N1 Claim Form to issue proceedings with PoC attached or to follow.
• C serves Particulars of Claim, setting out Legal and Factual basis of Claim
o In response, D can:
▪ File Acknowledgment of Service within 14 days (extending deadline for filing Defence to
28days from deemed date of service of PoC)
▪ File Defence
▪ Do nothing (see Default Judgment)
• D serves Defence
o Admit, deny, not admit – establishes issues in dispute
o D may serve a Counterclaim alongside the Defence (same format as C’s PoC)
• C serves Reply to D’s Defence, and a Counterclaim to D’s Reply
• Either C or D can make a Part 18 Request for Information, seeking clarification.
Allocation:
• Court preliminarily allocates case to Multi-Track
• Notice of Proposed Allocation (sent once Defence has been filed by D) requires parties to file their DQs (Form
N181)
o Since the case is multi-track, the parties will also need to submit alongside their DQ:
▪ Costs budget (agreed if possible)
▪ Case summary (agreed if possible)
▪ Budget discussion report
▪ Disclosure report
▪ Draft order for directions (agreed if possible)
Interim Matters Case summary (for CMC) follow structure in PD29 5.7(1) Prepared by C Agreed with D if
possible
Following submission of Budget Discussion Reports, court could impose a
Costs Management Order (CMO).
Court will either:
• Give order for directions; or
• Call a CMC to discuss how to proceed (‘hands on approach’
Order directions for CMC where directions were given (set out timeline).
CMC is where ‘hands-on’ approach is required
When disclosure order is made, parties use Form N265:
• Reasonable search
• Documents that meet CPR 31.6
• Serve on opponent
• If opponent’s list is incomplete you may apply for an order of
2
, Always Apply to the Facts, and Give Advice/Conclude
Specific Disclosure, or order of Specific Inspection.
• On-going responsibility to disclose (PD 31A 3.3)
o Additional disclosure done by a supplemental list
Draft witness statements (remember hearsay notice requirements)
Get expert reports Made by C’s And D’s experts
• Exchange and narrow down issues experts
• Without prejudice experts meeting
Any agreement which varies (inadvertently or otherwise) any of the Made by C Or made by D
following dates, must be consented to by the court (CPR 29.5):
• CMC
• Pre-Trial Review
• Return of Pre-Trial Checklist
• Trial
• Trial Period
Trial Pre-Trial review (court encourages parties to settle)
• Not always done, especially if timetable accelerated or if it’s a
small claim
Brief to counsel Done by C And D
Case summary (skeleton argument) for trial Prepared by C Approved by D
Trial itself
Post-Trial Appeal
Assessment of costs
Enforcement of judgment
Occur at any The following can take place at any time:
time after • Interim applications
commencement, o After proceedings start, but before trial
but before trial • Part 36 Offers/Acceptance
o Any time up to trial, without prejudice save as to costs
• Tomlin Orders
o Any time pauses trial on agreed terms
• D has no real prospect of successfully defending this claim, and there is no other compelling reason why
this claim should go to trial.
The Overriding Objective
Who the OO applies to The OO must be kept in mind by the court (CPR 1.2), the parties and their legal
advisors (CPR 1.3). Each party must help the court further the OO but owes no
duty to their opponent.
What the OO states The OO, which must be kept in mind at all times, is to enable the court to deal
with cases justly and at proportionate cost.
This involves, so far as is practicable:
(1) Ensuring that the parties are on an equal footing
(2) Saving expense
(3) Dealing with the case in ways which are proportionate to:
• The amount of money involved;
• The importance of the case;
• The complexity of the issues; and
• The financial position of each party
(4) Ensuring that it is dealt with expeditiously and fairly
(5) Allotting to it an appropriate share of the court’s resources (considering
the need to allot resources to other cases)
Note: the court may alter its own procedure to ‘deal with cases justly’ (e.g. allow
a claimant more time to perform tasks), but it will not directly interfere with the
nature of either party’s legal representation. The court cannot order that a
particular client receive legal aid either.
(Pre-Commencement) Pre-Action Steps
Pre-Commencement (Pre-Action) Steps
Check who is the actual client and whether the person you are speaking to has authorisation to act on
3
LPC Notes -
Dispute Resolution
For
(Distinction Grade)
, 2020/21 –
LPC Notes -
Dispute Resolution
For
(Distinction Grade)
, Always Apply to the Facts, and Give Advice/Conclude
Breach of Contract Negligence Misrepresentation Negligent Misstatement
• Contract exists • Duty of care • False statement of • Duty of care
• Implied/express term • Breach of duty fact between parties
• Breach • Causation • Relied upon • False statement by X
• Consequences • Loss • Induced other party to Y
• Loss • Mitigation into contract • Reliance on
• Remoteness • Remoteness • Causation statement by Y
• Mitigation • Loss • Loss
• Mitigation • Mitigation
• Remoteness • Remoteness
Difference the two = Misrepresentation requires a contract;
negligent misstatement only requires a DoC (higher evidential
burden for Claimant)
Timeline for Entire Multi-Track Case
Who does it?
Pre- Initial instructions:
Commencement • Pre-action steps: conduct, identify client’s objectives, locate parties,
check financial viability of D, check jurisdiction, ascertain limitation
periods, discuss funding, preserve evidence, legal research, case
analysis, letter of advice to client, comply with PD-PAC/PN-PAP,
keep client informed, consider part 36 offer.
• Important = Case analysis (on-going)
o Potential causes of action, factual issues, success
likelihood, further evidence needed
Commencement Letter before claim (C’s Solicitors → D’s Solicitors), presents C’s case to D.
of Action D may write a letter of response
Statements of case:
• C files and serves N1 Claim Form to issue proceedings with PoC attached or to follow.
• C serves Particulars of Claim, setting out Legal and Factual basis of Claim
o In response, D can:
▪ File Acknowledgment of Service within 14 days (extending deadline for filing Defence to
28days from deemed date of service of PoC)
▪ File Defence
▪ Do nothing (see Default Judgment)
• D serves Defence
o Admit, deny, not admit – establishes issues in dispute
o D may serve a Counterclaim alongside the Defence (same format as C’s PoC)
• C serves Reply to D’s Defence, and a Counterclaim to D’s Reply
• Either C or D can make a Part 18 Request for Information, seeking clarification.
Allocation:
• Court preliminarily allocates case to Multi-Track
• Notice of Proposed Allocation (sent once Defence has been filed by D) requires parties to file their DQs (Form
N181)
o Since the case is multi-track, the parties will also need to submit alongside their DQ:
▪ Costs budget (agreed if possible)
▪ Case summary (agreed if possible)
▪ Budget discussion report
▪ Disclosure report
▪ Draft order for directions (agreed if possible)
Interim Matters Case summary (for CMC) follow structure in PD29 5.7(1) Prepared by C Agreed with D if
possible
Following submission of Budget Discussion Reports, court could impose a
Costs Management Order (CMO).
Court will either:
• Give order for directions; or
• Call a CMC to discuss how to proceed (‘hands on approach’
Order directions for CMC where directions were given (set out timeline).
CMC is where ‘hands-on’ approach is required
When disclosure order is made, parties use Form N265:
• Reasonable search
• Documents that meet CPR 31.6
• Serve on opponent
• If opponent’s list is incomplete you may apply for an order of
2
, Always Apply to the Facts, and Give Advice/Conclude
Specific Disclosure, or order of Specific Inspection.
• On-going responsibility to disclose (PD 31A 3.3)
o Additional disclosure done by a supplemental list
Draft witness statements (remember hearsay notice requirements)
Get expert reports Made by C’s And D’s experts
• Exchange and narrow down issues experts
• Without prejudice experts meeting
Any agreement which varies (inadvertently or otherwise) any of the Made by C Or made by D
following dates, must be consented to by the court (CPR 29.5):
• CMC
• Pre-Trial Review
• Return of Pre-Trial Checklist
• Trial
• Trial Period
Trial Pre-Trial review (court encourages parties to settle)
• Not always done, especially if timetable accelerated or if it’s a
small claim
Brief to counsel Done by C And D
Case summary (skeleton argument) for trial Prepared by C Approved by D
Trial itself
Post-Trial Appeal
Assessment of costs
Enforcement of judgment
Occur at any The following can take place at any time:
time after • Interim applications
commencement, o After proceedings start, but before trial
but before trial • Part 36 Offers/Acceptance
o Any time up to trial, without prejudice save as to costs
• Tomlin Orders
o Any time pauses trial on agreed terms
• D has no real prospect of successfully defending this claim, and there is no other compelling reason why
this claim should go to trial.
The Overriding Objective
Who the OO applies to The OO must be kept in mind by the court (CPR 1.2), the parties and their legal
advisors (CPR 1.3). Each party must help the court further the OO but owes no
duty to their opponent.
What the OO states The OO, which must be kept in mind at all times, is to enable the court to deal
with cases justly and at proportionate cost.
This involves, so far as is practicable:
(1) Ensuring that the parties are on an equal footing
(2) Saving expense
(3) Dealing with the case in ways which are proportionate to:
• The amount of money involved;
• The importance of the case;
• The complexity of the issues; and
• The financial position of each party
(4) Ensuring that it is dealt with expeditiously and fairly
(5) Allotting to it an appropriate share of the court’s resources (considering
the need to allot resources to other cases)
Note: the court may alter its own procedure to ‘deal with cases justly’ (e.g. allow
a claimant more time to perform tasks), but it will not directly interfere with the
nature of either party’s legal representation. The court cannot order that a
particular client receive legal aid either.
(Pre-Commencement) Pre-Action Steps
Pre-Commencement (Pre-Action) Steps
Check who is the actual client and whether the person you are speaking to has authorisation to act on
3
