dispute resolution思维导图
dispute resolution
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思维导图大纲
dispute resolution思维导图模板大纲
ADR - alternative dispute resolution
overview
duty to consider ADR
lawyer make sure client understand ADR
ensure case are resolved in a proportionate, expeditious, and fair manner
at various stage of court proceedings, court may direct parties back to consider ADR
unreasonable refusal of ADR may lead in penalty in way of bearing legal cost, regardless of case result
mediation
informal, confidential, voluntary process
mediator does not adjudicate on disputes but only assist parties in reaching resolution themselves
mediator cost borne jointly by parties
early neutral evaluation: appoint neutral third party to render opinion of probable outcome at trial
ombudsman schemes: appoint neutral third party to investigate claims against public organisation or private service
round-table discussion (joint settlement meeting)
parties and their solicitors and barristers meet to try to agree a settlement
pre-action
limitation
type
15 years - longstop for latent defect
6 years - contract or tort
3 years - personal injury, fatal accident
1 year - defamation
3 months - unfair dismissal
commence date
tort
act occur or first gain konwledge
date of knowledge: when know sufficient information to commence investigation (not require know all information)
contract
date of breach, regardless of loss or damage incurred
construction contract: defect liability period (one or two years) do not affect 6 year time limit
agreed shorter limitation period is valid subject to reasonableness test
death
if dies within 3 years of accrual date, the limit will be 3 years from date of death or date of knowledge of deceased's PR
if dies after 3 years, time-barred
latent defect
later one of
6 years from date of accrual
3 years from know or ought to know material fact necessary to bring a claim
anyway not over 15 years
how date count
time limit start to run from the day after the date the cause of action arose
time ends when claimant deliver properly completed claim form to court with request to issue correct fee
if limitation expire on a day when court office is closed, then it is still in time do deliver document on next court business day
other procedural issue
change defendant
if defendant has been correctly identified but mistakenly named, no time limit issue
if add new party, may be barred
claimant be minor
clock do not start until 18th birthday
claimant lack capacity
if lack capacity at the point of accrual of cause of action, clock do not start until have sound mind
if lack capacity after that point, limit run as normal
pre-action application
pre-action disclosure
if documents held by the party are necessary to investigate potential claim
if disclosure would fairly assist in disposing of claim without need to issue proceedings and save costs
can be sought from non-party
pre-action inspection of property
is or may become the subject matter of proceeding
is relevant to issues that will arise in relation to proceedings
pre-action protocol
steps
letter of claim and response
disclosure and agreed expert
offer during protocol
same effect as Part 36 offer
choice of court
county court
organization
only one county court but it has multiple hearing centres
even if more than 100,000, may still before county court if case is simple
County court money claim centre
a special procedure for claiming debt up to 100,000, known as "special claims"
a separate procedure to issue claim unlikely involve a substantial dispute of fact
transfer of case: after receipt of defence, court will transfer claim to hearing centre local to defendant home (if it is individual) or the claimant's preferred hearing centre (if it is company)
high court
jurisdiciton
claim amount more than 100,000 or 50,000(personal injury)
other consideration
complexity
importance of outcome
high court may transfer case to county court or strike out claim
organization
Royal courts of Justice (RCJ) in London
District Registries in large cities and towns, claimant may choose DR
division
queens bench
cases
defamaiton
breach of contract
negligence
personal injury
land possession
non-payment of debt
specialist court
business and property court
technology and construction court
commercial court
chancery division
cases
equity and trust
commercial fraud
tax
IP
land
business disputes
contentious probate
regulatory work
bankruptcy
professional negligence
specialist court
bankruptcy court
companies court
issue proceedings
documents
claim form
issue claim by completing blank claim form
claim form includes full names of parties, concise statement of nature of claim, court preferred, court fee and legal cost claimed
a claim for a specified sum is called debt claim
claim for damages always be unspecified claim, even claimant give claim amount, it is up to court to decide
when valuing claim, should disregard interests, costs, contributory negligence, etc.
court fee
5% for 10,000- 200,000
10,000 if exceeds 200,000
cost
fixed amount for claim up to 10,000
particular of claim
a formal written statement setting out details
served together or with 14 days following service of claim form, failing which the proceeding have not been validly served
statement of truth
issuance
formality
court sealing the claim form with court official seal, allocating a claim number, send a Notice of Issue to claimant
service
prior to send document, claimant decide whether court or claimant serve at defendant
issue Part 8 claims
claim do not involve substantial dispute of fact
use Part 8 Claim Form
must serve witness evidence
responding: defendant do not make formal defence. they file witness evidence with acknowledgement of service. court allocate case to multi-track. if fail to response, cannot take part in hearing
service of claim form
time limit
must serve within 4 months within jurisdiction
6 months out of jurisdiction, need court permission
may apply for extension within the time limit
court serve
court will serve within court's jurisdiction by first class post unless claimant ask court not do so
if served, court issue certificate of service. if not, will inform claimant
if claimant solicitor is serving, should file a certificate of service within 21 days
response pack
served together with claim form
defendant need to send back to court
including acknowledge to service
other service method
on defendants nominated solicitor. if individual nominate solicitor, must serve on solicitor. if company, may post to registered address
personal service
partnership: better serve to all partners.
handed to individual
if receipt hand documents back or throw them on ground, it is still good service
fax
agree to accept by fax in wrting
fax number within jurisdiction
document exchange -DX
if address of service including DX
if express consent
service address
when whereabouts unknown
alternative service: court order that good order is made
company
cannot serve on director
when deemed served
on the second business day after service is made (1 July post, 3 July deemed served)
invalid service
defendant may argue invalid service, need to indicate in acknowledgement and make application within 14 days
responding to claim
time limit
respond to claim within 14 days after deemed service of particular of claim
if file acknowledge, another 14 days to file defence
if agreed by parties, extension max 28 days(total 56 days)
if objection to jurisdiction fail, 14 days to service defence from that point
calculating date
number of days are clear day
the day on which period begins is not included
the day on which an event occur (court hearing, but service of defence not an event) not include
if particular of claim served separately service date
second day after it was posted/left with
first class mail
DX
before 4:30pm, on that day; after 4:30pm, next day
delivering or leaving at a permitted premises
fax
other electronic means
personal service
response
form
admit the claim
if admit in protocol, up to 25,000
withdrawal of admission
may be permitted by court with good reasons
file and serve defence to claim
cannot simply deny, need reasons
acknowledge service
failure
fail to respond within 14 days, claimant can obtain judgment in default
defendant may apply set aside judgement in default with satisfactory grounds
once defendant file acknowledge, claimant may apply summary judgment or interim payment
discontinuance and settlement
discontinuance
filing a notice of discontinuance
defendant may claim costs
settlement
need to be legally binding by court order (Tomlin orders)
statement of case
means particulars of claim and defence
overriding objective: facilitate trial to proceed promptly, fairly, proportionately
interest
in breach of contract, interest is statutory rate or agreed rate, which is higher
non-commercial case 8%
commercial case 1% above bank of england base rate
statement of defence
response to particular of claim
admission
deny
non-admission: do not know whether an allegation is true or not
amendment
can amend only with written consent of all other parties or permission of court
can apply add or remove party
can substitute a party after limitation only if court consider it is necessary
Third Party (Part 20) Claim
type
counterclaim
no court permission requried
claim against another person
need court permission
new party will be a third party
third party be liable to claimant
claim seeking contribution or indemnity
no need permission if served with defence, otherwise, need
counterclaim against another third party
permit need
third party liable to defendant for same matte
track allocation
tracks
small claims track
fixed cost
fast track
trial take place within 30 weeks
witness evidence stand as evidence in chief (no need testify in court)
submit costs schedule ahead of hearing
sequence of events
disclosure
witness statement exchange
expert report exchange
pre-trial checklist
trial
multi track
Directions Questionnaire return within 28 days
file cost budget
costs and case management conference
consideration
ignore amount not in dispute
amount of oral evidence
capped claim amount is not absolute, if case is simple, county court or small claim track may try cases beyond the capped amount claim
interim application
defintion
application to court requiring a judicial decision
nature
procedural
notice
notice must made except for search order, freezing order
examples
setting aside default judgement
summary judgment
show the other party has no real prospect of success. no reason why case should proceed
both party can apply
if claimant apply this after acknowledgment of claim, defendant need not serve defence before hearing on summary judgment
time limit
applicant serve evidence 14 days before hearing
defendant serve evidence 7 days before hearing
applicant serve evidence 3 days before hearing
strike out
the statement of case is an abuse of court's processes
injunction
court
high court can issue all type, count court only limited jurisdiction
pre-action
may apply, must undertake to issue proceedings
two type
prohibitory
mandatory
defendant
may give undertaking in terms similar to injunction
freezing injunction
freeze assets of defendant
search order and preservation of property
for evidence
disclosure and inspection
disclosure
definition
clearly identify and inform the other side of the existence of a documents
duty to client and court
if client refuse to disclose documents adverse to their case, solicitor should cease to act
time limit
standard direction-28days
specific disclosure
court may order for specific disclosure
pre-action disclosure
privilege
its existence be disclosed, but have right to withhold it from inspection
type
legal advice previlege
litigation previlege
communication with third party re litigation
common interest privilege
between several defendants
WP privilege
public interest immunity
loss of privilege
send to the other side
mistaken disclosure
court may prevent use it
inspection
definition
enable other side to view certain of the documents disclosed
witness
affidatvit
加强版 witness statement, sworn, used in certain circumstance, e.g. apply for freezing order
general rule
signed statement need to testified in court
requirement
serve to opponent
serve a witness summary
hearsay evidence
statement made outside of court
if witness do not attend to court, it is treated as hearsay evidence, court will consider its weight.
other evidence issues
Notice to Admit Facts
a party believe certain facts are capable of agreement and admission, so as to not waste court time, request opponent to admit
Notice to Prove
a party believe a document is not authentic, request opponent to prove
Letter of Request
court in one jurisdiction ask court in another jurisdiction to take evidence
expert evidence
default is that experts will not attend court unless ordered by court
joint expert
parties share cost until conclusion, then losing party assume cost
agreed expert
defendant may agree claimant appoint expert in pre-action protocol. defendant can still point their own expert in proceedings
discussion
experts may arrange WP meeting discussing issues. legal representatives should not attend
trial
settlement before trial
Tomlin Order, worded"consent order", otherwise no automatic right to paymetn
pre-trial hearing
10 weeks before trial
case summary must not more than 500 words
issue witness summons
witness
1. evidence in chief
2. cross-examination
3. re-examination
appeal
time limit
21 days from when judgment hand down (not when sealed)
if expired, have chance apply Court of Appeal to retrospective permission
consider appeal
normally without hearing. but if refused, may request hearing within 7 days
hearing
not retrial, but may consider factual issues
costs
standard basis
indemnity basis
as a sanction against the party incurring unnecessary costs
method
fixed
assessment
if parties cannot agree on cost, court will have a hearing
summary assessment
in lower value case or interim application
detailed assessment
hearing take place months after main action concluded
provisional assessment
district judge consider reasonableness of the bill. if costs exceeds 75,000, no provisional assessment
cost management order
no budget, no costs
20% leeway allowed, otherwise apply to new order
inter-partes costs
a party in the claim is awarded costs against the other party
time to pay
within 14 days of the final costs certificates
security for costs
an interim application
court consider whether there is reason claimant will not be able to pay
if granted, claimant may be required to pay money or provide a bond
non-party costs
need to add as a party for costs
qualified one-way costs shifting
personal injury case, claimant do not pay defendant cost, unless dishonest and the like. protection may loss if defendant raise Part 36 offer
waste costs order
Part 36 Offer
if result of trial is less advantageous to offeree than the offer, judge court make offeree pay offeror's legal fees from point of offer rejected
formal required
using Court Form N242A or other form stating CPR Part 36
specify a period of not less than 21 days
inclusive of interest
withdrawal
if withdraw before expiry, it takes effect upon expiry
if withdraw after acceptance, may apply to court for withdraw or change
after expiry, may withdraw without limit
acceptance
may accept after expiry
must in written
if trial started, have to obtain court permission to accept
costs
D accept C
if D accept offer within relevant period, they become liable for C's costs
if D accept offer after expiry, court may decide the cost
C reject D's offer
C beats offer
normal
C fails to beat offer(even amount is same)
pay D on standard basis
D reject C's offer
D beats offer
normal
D fails to beat offer(even amount is same)
D pay C on indemnity basis, plus enhanced interest up to 10% above base rate. plus additional damages
enforcement
interest
high court
8% per annum from the date of judgment for high court judgement
county court
not apply for judgement under 5,000
same as high court for judgment above 5,000
oral examination
judgment creditor may apply court for an order requiring judgment debtor to attend court hearing to provide information about means and assets.
taking control of goods
high court issues Writ of control
county count issues warrant of control
cannot seize equipment for trading
controlled goods agreement: permits debtor retain custody of goods on understanding that the enforcement officer is taking control.
third party debt order- 协助执行
charging order on land
an equitable mortgage
attachment of earnings
compel employer deduct debtor's earnings and pay to court
charging orders against stocks and shares
file bankruptcy or wind up company
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