Revision notes for the CDR elective on the LPC at the University of Law. Notes written in the academic year 2020/21 and distinction worthy in that year. Document includes notes on all topics and 3 flowcharts for the topics of freezing injunctions, interim injunctions, and search orders.
COMMERCIAL DISPUTE RESOLUTION
REVISION NOTES
LPC (University of Law)
Pre-Action Considerations
Interim Injunctions
Freezing Injunctions
Search Orders
ADR
Negotiation and Settlement
Mediation
Arbitration
Jurisdiction
Additional Claims
Expert Evidence
Enforcement
Commercial Court
,PRE-ACTION CONSIDERATIONS
At the outset of any matter, there are several issues that the solicitor must explore with the client
Funding – there are many options for the client
• Conditional fee agreements (CFAs) – however, the success fee cannot be recovered from
the losing party (s.44 LASPO 2012)
• After the event insurance (ATE) – however, the premium cannot be recovered from the
losing party (s.46 LASPO 2012)
• Damages based agreements (DBAs) – allowed in civil litigation (s.45 LASPO 2012) – which
must be in writing which specifies the claim to which it relates, the circumstances in which
the payment is payable, and the reason for setting the amount at the level agreed
(Damages-Based Agreements Regulations 2013)
• Third party funding – where a specialist funding company will finance both sides of the
costs, in return for a percentage of any money recovered in litigation
• Private funding – where the party pays their own costs
Limitation periods – which begin to run from the date of the cause of action
• Basic claims in contract and tort have a 6-year limitation period (Limitation Act 1980)
• In the case of a contingent liability, the period does not begin to run until the contingency
occurs (Law Society v KPMG Peat Marwick)
• In negligence, the time limit can be extended to 3 years from when the claimant first had
knowledge of all the facts relevant to the cause of action, up to a maximum of 15 years
from the alleged breach of duty (s.14A LA 1980)
• For fraud, this can be extended up to 6 years from the discovery of the fraud (s.32 LA 1980)
• For latent damage, it can be extended up to 3 years from discovery of the damage
• Claims under the Consumer Protection Act 1987 have a 10-year limitation period
• If the claim is in contract, the contract should be checked to ensure it does not specify a
shorter limitation period
• A stay on the limitation may be agreed between parties if there is another party that may
be added at a later point
• Failing to take steps within a contingency period could lead to a negligence claim being
brought against the solicitor
Capacity – the solicitor must be satisfied that the client has legal capacity to sue or be sued
• This is a consideration mainly when one party is a child, foreign, or dead
• If a party is a partnership, all partners must be named in the cause of action
• If a party is an unincorporated body (i.e. a trade union) then it cannot sue or be sued
• The solicitor should also check if approval of a third person is required, e.g. an
administrator or trustee
Disclosure obligations – the client should be advised of these at the outset
• The client must be told that they must preserve any relevant documents
• Pre-action disclosure can be granted under CPR 31.16 so consider whether this would be a
good idea to apply for
• This order can also be made against a third party by a Norwich Pharmacal order provided
there are no other relevant CPR provisions, the party is likely to have relevant documents,
the party was involved in the wrongdoing and not merely a witness, and the order is
necessary in the interests of justice
, Complex actions – where there are multiple parties, there are special considerations to apply
• The claimant can use a single claim form to start all claims that can be conveniently
disposed of in the same proceedings (CPR 7.3) and this may be amended to add more
claims with the permission of the court and/or other parties
• Once a claim form has been served, a party can only be added, substituted, or removed
with the court’s permission provided this is desirable (CPR 19)
• The court may direct that multiple actions are consolidated into a single action to reduce
duplication of work (CPR 3.1(2)(g)) or that they be tried together but kept separate
otherwise (CPR 3.1(2)(h))
• If more than one person has the same interest in a claim, the court may allow one to
pursue or defend a claim as representative for the others or make a Group Litigation Order
(GLO) for large-scale litigation
Pre-action conduct – the provisions of the pre-action protocol must always be borne in mind
• Parties are required to exchange sufficient information (para 3)
• Costs incurred at this stage must be proportionate (para 5)
• Litigation should be a last resort, and ADR must be considered (paras 8-11)
• Failure to comply with the PD will be taken into account by the court (para 13)
• The court can then impose sanctions on a party which has failed to comply (paras 15-16)
Jurisdiction – there is often a foreign element involved in commercial dispute resolution, and it is
essential to ensure the chosen forum is suitable for this
Case management – is a very important feature of the CPR throughout proceedings
• The solicitor should always plan and manage the course of litigation for the client as if it
were a business project
• Considering the potential costs consequences of proceedings and mitigating their impact is
vital to the client
• The client must be given the best possible information throughout about the likely overall
costs of their matters (para 8.7 Code of Conduct)
• Budgets should be prepared and filed – once decided, it is very rare that permission will be
granted for their revision
• Parties should be aware that the court can exercise its case management powers on its
own initiative without an application from them (CPR 3.3)
• The implications of any potential orders should be considered throughout
The court
• Most High Court claims are commenced in the Queen’s Bench Division
• However, cases suitable for the Chancery Division include: land law, trusts, probate,
intellectual property, insolvency, company law, dissolution of partnerships
• Cases with a complex technical element may be dealt with by the Technology and
Construction Court (TCC) including disputes relating to: building, construction, engineering,
computer software and networks, specialist goods or services, repairing covenants, the
environment, fires
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