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Dispute Resolution FULL Revision Guide with notes and examples
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- University Of Law (ULaw)
Dispute Resolution FULL Revision Guide with notes and examples in the appendix.
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DISPUTE RESOLUTION,CONTENTS PAGE:
PRE-ACTION STEPS 4
METHODS OF FUNDING A CLAIM 12
PRACTICE DIRECTON 13
PROFESSIONAL NEGLIGENCE 14
ALTERNATIVES TO LITIGATION 17
MEDIATION + ARBITRATION 19
LETTER OF ADVICE 21
LETTER BEFORE CLAIM 22
WHICH COURT? 26
ANNOTATED PARTICULARS OF CLAIM 29
ANNOTATED DEFENCE 32
ACKNOWLEDGEMENT OF SERVICE 35
DEFAULT JUDGEMENT 37
COURTS POWERS AND SANCTIONS 39
ALLOCATION 40
DIRECTIONS QUESTIONNAIRE 42
CASE MANGEMENT CONFERENCE 46
COSTS MANAGEMENT 47
INTERIM APPLICATION 49
SUMMARY JUDGEMENT 52
INTERIM PAYMENT 54
SECURITY OF COSTS 55
DISCLOSURE 57
EVIDENCE 68
WITNESS STATEMENT 70
EXPERT EVIDENCE 78
SINGLE JOINT EXPERT 81
SETTLEMENT AND PART 36 OFFERS 84
PRE-TRIAL PREPARATIONS 94
TRIAL 96
COSTS FOLLOWING TRIAL 97
METHODS OF ENFORCING JUDGEMENT 103
EXEMPLARS 109
CRIMINAL LITIGATION – OFFENCES 144
POLICE POWERS 145
ADVISING ON INTERVIEW 148
WRITTEN STATEMENT 150
ADVERSE INFERENCES 150
DETENTION WITHOUT CHARGE 151
ALTERNATIVES TO CHARGING 153
FUNDING 154
PLEA 157
CHOICE OF VENUE 159
BAIL APPLICATION 162
CASE ANALYSIS + EXEMPLARS 168
BAD CHARACTER 172
HEARSAY EVIDENCE 176
CONFESSION EVIDENCE 179
LIKELY SENTENCE AND PLEA IN MITIGATION 183
CALENDARS 188
2
,KEY TERMS:
Claimant (C) The party issuing proceedings against the Defendant.
Defendant (D) The party against which the Claimant issues proceedings.
Appellant The party appealing a judgement.
The party making an application to the court, which can be either the
Applicant
Claimant or Defendant.
The party responding to an application made by the Applicant to the Court,
Respondent
which can be either the Claimant or Defendant.
A set of rules by which all parties to civil litigation in England and Wales must
abide. The CPRs are explained, and elaborated upon by the Practice
Directions (PD). The CPRs apply to all proceedings in the Court of Appeal
The Civil Procedure
(Civil Division), the High Court and the County Courts, except for matters
Rules (CPRs)
relating to insolvency, probate, family proceedings and certain other matters
(see CPR 2.1) In addition, certain courts have their own guides, the rules of
which the parties must follow.
The overriding objective of the CPR is to deal with cases justly and at
proportionate cost/ The courts will bear in mind the overriding objective at
Overriding Objective at
all stages of the claim. The parties must not allow the claim to become a
CPR 1.1
‘verbal brawl’ (Canary Riverside Estate Management Ltd v Circus
Apartments Ltd)
The term us used to refer to the set forms on which certain documents
Form should be submitted, directions requested and applications made to the
Court under the CPRs, e.g. Form N9
The courts expect parties to behave in certain ways even before cases start.
Pre-action conduct /
The PDPAC contains specific pre-action protocols for some disputes (e.g. the
Practice direction –
Professional Negligence Pre-Action Protocol) and general points for disputes
Pre-action conduct and
not covered by a specific protocol. The PDPAC aims to promote early
protocols (PDPAC)
resolution of disputes without parties having to resort to litigation.
A letter in a format set out by the PDPAC, which will be sent by the aggrieved
party to the other party, as part of an attempt to settle the dispute without
Letter before claim going to court. It must be sent before the Claim Form. It will set out the
grievances alleged, and will contain information required by the PDPAC such
as a statement that the other party’s insurer should be notified.
Another statement of case, which provides further detail of a claim. It sets
Particulars of Claim out the claim in a greater level of detail than the Claim Form. It will be sent
with the Claim Form or shortly after, and must be in a prescribed format.
Alternative Dispute A variety of methods of resolving disputes outside of the formal litigation
Resolution (ADR) process (e.g. mediation).
3
, (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 their behalf
o You may have to pay for any stops taken without proper authority
• Complete conflict of interest, confidentiality
• Complete money laundering checks by verifying two identification documents
• Discuss client’s objectives, for example, identify the quantum of the claim
o Breach of contract quantum = difference between what X paid, and what X would have paid if
there was no breach
• Identify, locate and determine the financial status of prospective parties
• See if the UK has jurisdiction on the matter
• Ascertain limitation period
• Discuss funding with client
o Private funding
o Before the event insurance
o Public funding
o Trade union funding
o Conditional Fee Agreements
o Damages Based Agreements
• Collect and preserve (tell client to not destroy anything) evidence (witness statements, documents,
etc)
• Complete a case analysis
• Write a letter to the client summarising your analysis and advising on options
• Explore methods of ADR with client
• Comply with PD-PAC/PN-PAP requirements
• Keep the client informed
• Consider a Part 36 offer (Settlement)
CASE ANALYSIS:
You should conduct a case analysis when you are presented with a set of facts, in order to ensure that you
focus upon all of the key issues. The steps below are a suggested structure which is followed by an
example:
Record the facts of the case:
Step 1: a) Names of the parties
b) Events that took place
Is there a cause of action?
a) Breach of contract
b) Negligence
c) Negligent misstatement
d) Misrepresentation
Step 2: e) Nuisance
f) Trespass
a. To land
b. To goods
g) Infringement of intellectual property rights
h) Any other cause of action?
4
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