Notes look good - formatted well and concise - I am on the BPP course however so I understand the content from the school these were written may differ, but
Dispute Resolution
Concepts:
1. Merits of claim or defence
2. Arbitration, mediation and litigation as an appropriate mechanism to resolve a dispute
3. Pre-action considerations and steps
4. Commencing, responding to or progressing a claim
5. Case management and any interim applications relevant to a claim
6. Evidence needed and disclosure steps in commencing, responding to, progressing or defending a claim
7. Preparation of a case for a trial, the trial and any post trial steps
8. Procedures and processes relevant to costs involved in dispute resolution
1
, mediation arbitration litigation
Informal - any evidence Look for K clause - normally present Consider ADR first, court can penalize
written submissions unless no R chance ADR would work
Concurrent with litigation
Alternative to litigation Get outcome certainty, precedent
Cost effective
Enforceable signed agreement Binding final award Binding judgement
Minor P: time does not start until 18th birthday
Incapacity P: time does not start until have Certification of Sound Mind
Tort: know of all elements of the tort; or P had suff info to investigate into potential claim against D
- Clinical Negl: starts when P knows: [1] injury is signif [2] injury attributed to act/ommission [3] D’s identity
- Death: if P dies w/in 3 years of accrual date, limitation is:
- 3 years from date of death, or
- 3 years from date of knowledge of personal rep
- Ex. tort → P dies in 3 months → wife has 3 years from tort to bring claim
- Fraud, misrep, mistake: when P ought to have discovered it
Contract: breach - normally when performance completed
- Entire agreement clause may limit liability with agreed to shorter limitation period - shorter limitations
must be R to be enf
Defective Construction: K states 1-2 years in a “make good clause”, but 6 years still applies
- Longstop 15 years for latent defects: property defect caused by fault in design, materials, workmanship
that existed at time construction completed but not apparent at time of completion
- for latent defects, limitation is later of: 6 years from accrual date OR 3 years from when P ought to
know alleged negligence
2
, Pre-Action Protocols
Before proceedings issued - intended to aid settlement - includes:
- Letter of claim and D’s response with reasons w/in 14 days
- D has 3 months to investigate
- Medical reports/injury impact
- Consider ADR
- Disclose key docs
- Consider joint expert
- Template letters and guidelines for doc exchange
Compliance need be proportionate and adequate - failure to comply: [1] sanctions - cost orders, OR [2] stay of
proceedings until compliance
Specific Protocols:
- Debt - Disease - Dilapidation commercial
- PI - Clinical disputes property
- Low value MVA or low - Construction/eng - Defamation
value ER/public liability - Housing disrepair - JR
- Prof negligence
Personal Injury Protocol (FT <25K - not for med negl or mva)
ltr of claim → def response w/in 21 days → 3 month investigate → admit/deny →[1] if admit, P send MLR and
specials schedule [2] if deny, D send ltr of denial with doc list →standard disclosure lists → P suggests joint expert →
D has 14 days to disagree to expert
Construction Protocol - claims against architects, eng - can choose not to use by agreement
Pre-Action Disclosure:
- On application for docs relevant to proceedings from party or non-partyIF:
[1] necessary to investigation potential claim fully
[2] respondent and applicant likely to be parties
[3] documents would be disclosed under standard discl rules
[4] discl would assist with disposing of claim
- On application for property inspection to ensure not altered pre-trial IF:
[1] property is the subject matter of proceedings
[2] property relevant to issues that will arise
Recovering Costs from Pre-Action Phase:
- If parties resolve now, up to them to agree to costs - cannot recover if no proceedings commenced
- If P issues claim form bc they couldn't resolve, then D cannot recover costs in protocol compliance
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