Summary Detailed Dispute Resolution Notes SQE

Dispute Resolution



DISPUTE RESOLUTION: REVISION NOTES
CONTENTS


1. Key pre-action steps
2. Commencing and responding to a claim
3. Statements of case and interim applications
4. Case Management
5. Disclosure of Documents
6. Evidence
7. Preparations for trial, trial procedure and appeals
8. trial costs
9. Aspects of costs and enforcement

PRE-ACTION STEPS
OPTIONS FOR RESOLUTION


ADR (Alternative Dispute Resolution)  any means of settling a dispute outside
of civil litigation with the assistance of an independent third party.



ADR should be used unless:

 Obviously inappropriate
 The other party is unlikely to co-operate
 Other party cannot be trusted to comply with an award.

If a party chooses not to engage in proposed ADR, they must serve a witness statement
giving reasons within 21 days. Cost penalties can be imposed where a party decides not
to engage

Court can order parties to engage in ADR provided they do not impair the right to
judicial hearing and this is proportionate to the legitimate aim of settling the
dispute quickly and at a reasonable cost

ADR Procedures

ADR Features Advantages Disadvantages
Procedure
Mediation Independent 3rd  Can be much  May be
party acts as a cheaper than inappropriat
mediator. There will arbitration and e, such as in
be a discussion on a litigation cases of
without prejudice  Can be significantly fraud.
basis. quicker  No formal
 Very flexible – no procedure -
legal requirements risk of
 Private parties not
 Preserves business knowing all
relationship the facts.
 Able to withdraw at  Ability to
anytime withdraw –
could be an

,Dispute Resolution


issue
Cannot be enforced
like a court
judgement but
usually binding
contract.
Arbitration Once a party  could apply to the  Dispute will
agrees to High Court under not receive
arbitration they s66 for permission depth of
cannot enter into to enforce investigation
litigation and is arbitration as if it  Remedies
often agreed to in a were a court such as
contract. judgement. injunctions
 Likely to be quicker not available
The arbitrator ia a  May be cheaper  Unlikely to
professional and the  Less formal be cheap as
decision reached procedurally arbitration
will be legally  Impartial third expert and
binding party with lawyers
expertise needed
 Retains
confidentiality
 Practical solutions
 Decision is binding


LITIGATION

The main advantage is that the courts will break a deadlock between parties.

Order of Civil Claims Proceedings:

1. Pre commencement of proceedings – objectives are established, costs will be
addressed and serious consideration given to ADR (Pre-Action Protocols).
2. Commencement of the Claim – claim form served on defendant together with
the full details of the claim.
3. Interim matters – court manages case to ensure that it progresses towards trail
date.
4. Trial – evidence heard at trial and judge will make a decision as to the outcome.

Post-trial – A party who is unhappy with the judgement may decide to appeal all or part
of the trial judge’s decision

CIVIL CLAIMS

Limitations

Types of claim Limitation
Basic rule  6 years from
Contract 6 the cause
years fromofthe
action
breach accruing
Tort 6 years from when the tort was committed
Tort – personal injury 3 years from the date of cause of action/ knowledge of who
committed the tort.
Latent negligence Minors  starts at 18
Ultimate limit of 15 years
3 years from the date of knowledge of the damage



Types of claim and analysis

, Dispute Resolution


 Specified claims  claim for specified fixed amount of money.
 Unspecified claim  the court will conduct an investigation to determine the
amount of money payable
 The defendant must be traceable and worth suing, i.e. not bankrupt. A lawyer will
not be acting in the best interests of their client if they encourage them to pursue
a case that is hopeless from the outset or with only limited prospects of success.


Remoteness – if the loss is too remote the defendant may not be held liable for it.

Mitigation of loss – the obligation of the claimant to minimise their losses after the
harmful event occurred.




PRE-ACTION PROCEDURE

Principles:

 Litigation should be a last resort
 Parties should exchange sufficient information
 Only reasonable and proportionate steps should be taken by the parties

Practice direction on pre-action conduct and protocols

Ste Action
p
1 Claimant sends letter before claiming, stating:
 Details of the claim
 Summary of the facts
 What the C wants from the D
 Key documents
2 Defendant sends a letter of response:
 In a reasonable time
 Confirming if accepted or indicating a counterclaim
3 Claimant replies and consider ADR
4 Stocktake: the parties should review their positions
5 Sanctions for non-compliance
 Party at default pays opponents costs
 Claimant is deprived of some or all interest on damages
 D is required to pay a higher rate of interest on damages.
Pre-action protocol for professional negligence

Step Action
1 Claimant gives preliminary notice
2 Claimant sends Letter of Claim
3 Defendant acknowledges
4 Defendant investigates claim
5 Defendant sends letter of response
6 1. Claim is denied an no settlement offered so proceedings commence
OR
2. Claim is admitted in whole or part and/or settlement offered
Debt Claims: