Professional Documents
Culture Documents
COURT STRUCTURE
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TYPE OF CLAIM / COURSES OF ACTION– CONTRACT OR TORT OR OTHER?
BREACH OF Requirements:
CONTRACT Element to Details Legal authority
establish
1. Contract (the existence of the contract)
Offer, acceptance, consideration, intention to create legal relations
2. Breach of contract (cause of action)
Sale of goods Not Implied condition that the goods will be of satisfactory quality, i.e. as to
Act 1979 satisfactory appearance and finish, free from minor defects, safe, durable and fit for
Implies quality 14(2) purposes for which goods of the kind in question are commonly supplied
conditions into (14(2))
a contract for
the sale of
goods, where Not fit for Where a buyer makes known to the seller a particular purpose for which the
the seller sells purpose goods are being acquired, the goods are reasonably fit for that purpose
in the course 14(3) (s14(3))
of a business
Quality or Implied condition re: quality or fitness for use: that where a transferor
fitness for supplies goods in the course of a business, there is an implied condition that
use the goods supplied under the contract are of satisfactory quality (4(2)
s.4 “Satisfactory quality” is where the goods meet the standard that a
Supply of reasonable person would regard as satisfactory, taking into account of any
goods and description of the goods, the price (if relevant) and all other relevant
services Act circumstances (4(2A)). If dealing as consumer see 4(2B)
1982
Skill and Implied term re: skill and care: in a contract where the supplier is acting in
care the course of a business, there is an implied term that the supplier will carry
s.13 out the service with reasonable care and skill (s13)
3. Causation
Did the The damages must not be too remote from the breach:
breach of Consequential loss flowing from breach
contract Hadley v Baxendale – reasonably foreseeable at the time of the contract:
cause the • everyone is taken to know what loss is liable to result in the
loss? ordinary course of things from a breach
• in addition, the person breach in the contract may have actual
knowledge of special circumstances which would give rise to
additional loss
NEGLIGENT Under the precedent set in Hedley Byrne v Heller a duty of care shall exist in respect of negligent
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MISSTATEMENT misstatement if the following criteria exist:
Depends upon proof of a special relationship existing between the parties. Such a duty can arise in a
purely commercial relationship where the representor has (or purports to have) some special skill or
knowledge and knows (or it is reasonable for him to assume) that the representee will rely on the
representation
Remedies:
• The injured party may elect to claim damages for negligent misrepresentation at common
law. The test of remoteness in the tort of negligence is that the injured party may recover for
only reasonably foreseeable loss
• Rescission, ie setting aside the contract, is possible in all cases of misrepresentation. The
aim of rescission is to put the parties back in their original position, as though the contract
had not been made. The injured party may rescind the contract by giving notice to the
representor, unless any of the bars apply:
NEGLIGENCE
Elements to establish Facts to establish Available evidence
PRIVATE “a substantial and unreasonable interference with C’s use or enjoyment of land”
NUISANCE
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• As a person of ordinary sensitivity living in that locality
• Factors:
o Location
o Extent of harm
o Continuing?
o Social value of D’s use
o Motive
For a matter to qualify and be actionable as a nuisance in law it must be a serious matter.
One-off events are rarely sufficient. Also, specific sensitivities of those suffering cannot be taken
account of in deciding whether a matter is a nuisance.
• Damage:
o Tort
o Reasonably forseeability
o remoteness
Under the common law, the only remedy for a nuisance was the payment of damages. However,
with the development of the courts of equity,
the remedy of an injunction became available to prevent a defendant from repeating the activity
that caused the nuisance, and specifying punishment for contempt if the defendant is in breach
of such an injunction.
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EVIDENCE TO SUPPORT CLAIM WS6 AND I TUT
- Wide definition
- Anything information recorded on (r.31.6)
- Ie written documents, discs, photos, included deleted ones
- Electronic disclosure under PD 31 para 2A
o If email think about (a) the original held by the recipient and (b) copy held by the
sender
Must make a ‘reasonable search’ (r31.7) – for guidance see the nature/complexity of issues, ease
/ expense of retrieval / significance of document limited to documents which are, or which have
been in his control under R.31.8(2):
a) Is it / was it in his physical possession Would require SOL
b) Has / had right to possession of it to check the
contractual and
c) Has / had right to inspect or take copies of it constitutional doc’s.
Does the Subsid
- parent/subsidiary: parent company considered as a 3rd party have rights over
parent’s doc’s and
- but subsidiary does not have control of parent company’s docs vice versa
- parent company would have control of subsidiary documents
- CHECK capacity person holding documents eg Director of client company and x company, is
the director holding the document in capacity as director for client comp or x? if x then not in
control.
3. Is it a R.31.6 document?
4. Is it privileged from inspection? (think about when it was created and why)
o Communications between Solicitor and 3rd party, or 3rd party and client
o For sole or dominant purpose of obtaining evidence, or obtain or give legal advice
o When litigation in reasonable contemplation or pending
o LOOK FOR ‘strictly privileged & confidential ‘ on doc’s = not conclusive but
evidence to suggest the intention of parties
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- COMMON INTEREST PRIVILEGE
o Communications between parties with common interest in potential litigation
o Dominant purpose – inform other party of legal situation, exchange, facts, issues
advice received or for purpose of receiving legal advice
o Is parent funding litigation? Will their reputation be affected?
o Interests sufficiently close that could’ve used same solicitor
o This applies to parties in the same group, because if one company within the group is
found liable there will be financial consequences for all comp’s in the group
INCOMPLETE DISCLOSURE:
If you suspect that some doc’s haven’t been disclosed, write to the other side covering following points:
- state action required – supplemental list of documents verified by affidavit within 21 days
THEN –
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If opponent doesn’t comply with specific disclosure apply for an ‘unless order’ under r.3, if they still don’t
comply with that then their claim / defence will be struck out and case over.
Duty of the expert - Duty is to the court, not to party instructing the expert (PD35 para 1.1)
- Must be independent and uninfluenced by the pressures of litigation PD 35 para
1.2
- Must consider all material facts including those which might detract from his
opinion PD35 para 1.4
- PD 35(2).4 statement of truth- if breach: possibly liable for contempt of court PD
35 para 2.5
- The Ikarian Reefer
o Impartial/independent/objective
o Must not ignore material facts
o State facts which form their own opinion
o State where a matter falls outside expertise
o State if view is “provisional”
Expert employed by a - Need to prove that truly independent and understands that his primary duty is to
party instructing him court, not employer
Biased/inadequacy of - Apply for report to be excluded and/or for the instructions to be disclosed in full
report - Possible breaches:
o PD 35 para 1.1: may not understand duty to the court
o PD 35 para 1.2: could be influenced by his position as employee
o PD 35 para 1.3: may not be objective/unbiased
o PD 35 para 1.4: may not have considered all material facts
Conduct - Solicitor under duty not to mislead the court (Draft code of conduct 11.01)
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PROCEDURAL STEPS ON COMMENCEMENT OF PROCEEDINGS IN THE COMMERCIAL COURT
Serve claim form + response pack (may be with or without partics of claim) –Pt 58.5(b)
D file Acknowledgement of Service within 14 days of service of Claim Form –Pt 58.6(2)
If PoC NOT served with Claim Form then C must serve PoC within 28 days of AoS- Pt 58.5(c)
Subject to extensions of time D must file If D want to joint third party as Part 20 Third
defence within 28 days of service of PoC- Pt Party then issue Part 20 Claim Form at same
58.10(1) time as OR before filing defence –Pt 20.7(3)
C may file reply to defence within 21 days of Serve Part 20 Claim Form on Third Party within
service of defence Pt 58.10(1) 14 days of issue with Response Pack + copy of
every statement of case already served- Pt
20.12(1)
+
Serve a copy of the Part 20 Claim Form on C-
Pt 20.12(2)
CMC will deal with directions for trial for both Service of AoS by Third Paty as per Part 58
the main action and the third party procedure- Pt 58.6
proceedings. Pt 20.13 and PD 58 para 12
(note no allocation questionnaire, instead C M
info sheet –PD 58 para 10.7)
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PART 20 PROCEEDINGS
Introduction Part 20 by which the court manages disputes involving a number of parties or causes
of action.
The aim of the court is to have as few actions as possible, with as few parties as
possible.
• this reduces duplication of work,
• ensuring that the dispute is resolved as quickly as possible and
• without incurring unnecessary costs;
• it also avoids the risk of inconsistent judgments on related matters.
Counterclaim Part 20.4(1): counterclaim is claim by the defendant against the claimant
- File a defence + counterclaim
Join other parties to - Part 20.5 counterclaim against person other than the claimant
the litigation - Part 20.6 claim for contribution/indemnity from co-defendant (multiple defendants)
- Part 20.7 3rd party proceedings- treated as separate claim but takes place within
existing case number
A ------ sues ------- B --------- sues (using Part 20 Third Party Claim) ----- C
3 When considering who to serve Part 20 consider:
• Current relationship and how this would be affected
• Are they solvent
• What B will want from C ? eg Indemnity for what B has to pay A plus damages
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Jurisdiction and Applicable law: consider;
• Foreign jurisdiction legal rules eg level of damages, claiming costs
• Does firm have capability to work in case abroad
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• Enforceability of any judgements at home and abroad
NB – a physical check of the contracts is essential to determine what law and which jurisdiction applies
NB – some kind of duty to preserve documents applies to solicitors??? FIND OUT WHAT RULE
Limitation Issues
Periods The principal statutory authority is the Limitation Act 1980 (LA 1980).
In the majority of cases, the limitation period commences on the date the cause of action arises.
The basic rule for actions founded on contract or tort is that the claimant has six years from the
date of the cause of action to commence proceedings.
Initial considerations • Failure to issue proceedings or take other steps within the limitation period has
always been a major source of negligence claims against solicitors.
• All necessary checks must be put in place to ensure that any time limits are not
missed (eg a duplicate diary system),
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• If there is any doubt as to whether the limitation period has expired, or if the time
period left is short, a solicitor should issue proceedings to protect the client’s
position.
• Even if the most obvious claim is time-barred, an alternative claim might be
available. Solicitors acting for potential defendants should pay equal attention to
this consideration when first approached by their client.
• If limitation can be pleaded as a defence, it is a very effective tool for a defendant.
Exceptions Negligence claims in tort have a time limit that can be extended by s.14A LA 1980 to the date three
years after the claimant first had knowledge of all the facts relevant to the cause of action with max
of 15years.
(a) Fraud. Section 32 of the LA 1980 contains a similar exception to that contained in s 14A,
namely that in the event of fraud, concealment or mistake, the limitation period is
postponed until six years from the claimant discovering the fraud.
(b) Consumer. Claims under the Consumer Protection Act 1987 are subject to a statutory 10-
year longstop date after which claims cannot be brought.
(c) Contribution. Where a claim for contribution is brought by way of separate proceedings (ie
not by way of an additional claim under Part 20), under the Civil Liability Contribution Act
1978 the limitation period is two years from the date of judgment or, if none, from the date
of any agreement to settle reached between the parties.
(d) Pending actions. S.35 of the LA 1980 and r 19.5 of CPR 1998 restrict the ability of a party
to defeat the rules on limitation by adding a new claim to existing proceedings when it
would be too late to start a separate action.
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INJUNCTIONS – ARE ANY NECESSARY? ITUT AND WS 3 AND WS 4
General Points • Who are you working for? Are you arguing for or against the injunction?
• Normally more than one in a question
UNDERTAKING INJUNCTION
- Saves costs – don’t needs interim hearing - Either party can apply to vary or set aside
- As effective as injunction with penal notice – BUT
non compliance punishable as contempt of o More difficult to vary or set aside
court undertaking because given voluntarily by
- Can negotiate terms of undertaking so D
restraints on D more acceptable than what o Undertaking only varied if significant
would be imposed by injunction change in circumstances or have
- Judge may be more favourable towards D become aware or new facts
when awarding costs because D’s acceptance - If injunction set aside, D may be entitled to
of undertaking makes them appear reasonable damages because of C’s cross undertaking
and saved cost of interim hearing.
OPPOSING If you are opposing the injunction then you will be arguing that the test has not been satisfied and/or that
INJUNCTION the order should be varied:
STRUCTURE
How to attack injunction:
1. attack the root test for that injunction
2. any arguments in equity?
o Full diusclosure?
o Malice
3. any procedural irregularities?
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o CPR?
o Served documents correctly?
o Search order:
Any parts of order been breached?
Any undertaking not been fulfilled?
4. how can it be varied so better for client?
o Narrow order
o Personal / business allowances
1. Apply for application notice – FORM N244(note: r 23.3(2) allows court to dispense with this
requirement-urgent)
3. Evidence can be set out in witness statement verified by statement of truth (PD 25, para 3.2) and
state:
o Cause of action
o Facts applicant relying on and all material facts court should be made aware of (PD25
para 3.3)
o Therefore should include information of C’s financial situation because of cross
undertaking needed from them
4. Application notice and witness statement must be served ASAP after its been issued, AND
o Not less than 3 days before hearing of application (r.23(7(1)), AND
o It must be filed with court (r.23.7(2)), AND
o Any draft order containing terms of injunction, penal notice and cross undertaking must
also be served and filed
5. Undertaking of Claimant
o Order for Prohib injunc must have undertaking from C:
- To pay any damages suffered by D that court deems appropriate (PD 25 para
5.1(1)) ie cross undertaking – Court must be satisfied that C is financially viable.
6. Issue fee
WHEN IS IT ALLOWED?
- Court can grant interim remedy on without notice application if appears there are good reasons for no
giving notice (r.25.3(1))
- Usual reasons:
Application may be made orally if insufficient time for writing, but court will require undertakings from
applicant or his solicitor to file and serve written evidence to support application:
1. Evidence in support of the application must explain why notice not given- evidence. C must
make FULL disclosure of all facts, including any that go against C’s case. Pt 25.3(1)
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2. The application, supporting evidence and a draft order should be filed 2 hours before hearing,
wherever possible (PD25 para 4.3(1)
(a) the material facts the court should be made aware of (PD 25 para 3.3);
(b) the facts justifying an interim injunction;
(c) the facts justifying an application without notice to the D (r.25.3(3) + PD25 para 3.4)
(d) any answer which is likely to be raised by the D ie in support of D’s case;
(e) any facts known to the applicant which might make a without notice
- remedy inappropriate; and
- the precise order being sought.
1. Application notice, evidence and draft order filed with court 2hrs before hearing (PD25 para
4.3(1)
3. C should informally notify D of application unless secrecy essential (PD 25 para 4.3(3))
4. C must undertake to court to issue claim form immediately, or court will give directions for
commencement of claim (PD 25 para 4.4(1))
5. C should try and serve claim form with order for injunction on D (PD 25 para 4.4(2)
- Same as first 3 steps as in procedure for application made before claim form issurd
- Simply DON’T have to undertake to issue claim form
AMERICXAN Court has discretion to grant P.I even if guidelines are met
CYANAMID
GUIDELINES: 1. IS THERE A SERIOUS QUESTION TO BE TRIED?
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o Loss unquantifiable
o Irreparable loss (eg damage to reputation or loss of business)
o D wouldn’t be able to pay damages
IF C had to pay the D damages, would it be an adequate remedy to D for harm caused by
injunction?
- Status Quo
o If balance of relative harm doesn’t clearly favour on party
o Court usually upholds status quo:
If C hasn’t delayed in applying for injunction = status quo = position parties in
before cause of dispute arose
If C has delayed in applying = status quo = position of parties just before application
issued
o Therefore C should mention haven’t delayed in application and what status quo is
o Or if C has delayed, D should mention this and status quo
- Applications for injunctions preventing publication of confidential information where ---there are
public interest issues.
If injunction granted, early trial should be considered minimising the loss suffered by D as a
result
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Grounds for applying to set aside or vary:
2. Equitable grounds
3. Reach a conclusion
3. D has property in jurisdiction and intends to act so as to frustrate the enforcement of the C’s
judgement:
- ‘Real likelihood’- C must persuade court that D will deliberately deal with assets in a way
which will defeat C’s ability to recover damages.
- Usually needs to be clear evidence that the D is a ‘debt dodger’/previous conduct, incl
dishonesty, disregard of court orders, evidence of taking steps to dispose of assets.
D will argue that the order should not have been made in the first place under one of following:
- Even after all of the weaknesses of C’s case and strengths of the D’s case considered?
o C still has a real prospect of success
o Low threshold
- Application always made without notice:
o C has duty to disclose all points D would have raised? Did they?
o Duty to make reasonable enquiries
o Has C made full and frank disclosure?
5. Does D have property in Juris and does he intend to act so as to frustrate enforcement of C’s
judgement if C wins?
- Need to show real likelihood not mere possibility that D will frustrate enforcement?
- Any evidence that they will / wont? Eg by moving property out if the Juris or disposing of it in
other ways?
- Need evidence to show D is ‘debt dodger’ – type of person to try and frustrate C’s
enforcement – D should argue that C has no such evidence – never tried to avoid debts
- D have any innocent reason for disposing of property to counter C’s argument?
- Yet if D is based outside UK court will take into account D’s ability to remove property from
Juris AND difficulty of enforcing judgement in that country
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IF CANT SET ASIDE THEN:
EXCEPTIONS:
- D allowed to withdraw weekly specified sum for living and business expenses and legal costs
- Amount D allowed to withdraw must be reasonable – based on D’s usual lifestyle
- 3rd party can be in contempt of court if informed of order and help D break the order eg bank
- Not liable in damages
- 3rd party can apply to have injunction set aside or varied if its causing them undue difficulty
APPLICATION PROCEDURE:
ORDER
- Must include penal notice else D cant be held in contempt of court for non-compliance
- C gives cross undertaking
- Return date – hearing where D can try and get the injunction set aside or varied
- States particular assets frozen – lists ones C knows of BUT not limited to them
- Amount D frozen up to – can use surplus freely
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Duty to make reasonable enquiries
2. Has C proved that he’ll suffer serious harm and injustice if order not made?
o Evidence that D will destroy evidence or property belonging to C in D’s possession?
o If were destroyed – is this irreplaceable? Would cause signif harm to C’s case?
D will argue that the order should not have been made in the first place under one of following:
7.4 Service:
(1) the order must be served personally by the Supervising Solicitor,
(3) the Supervising Solicitor may be accompanied only by the persons mentioned in the order,
(4) the Supervising Solicitor must explain the terms and effect of the order to the respondent in
everyday language
(5) where the Supervising Solicitor is a man and the respondent is likely to be an unaccompanied
woman, at least one other person named in the order must be a woman and must accompany the
Supervising Solicitor, and
(6) the order may only be served between 9.30 a.m. and 5.30 p.m. Monday to Friday
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7.5 Search and custody of materials:
(1) no material shall be removed unless clearly covered by the terms of the order,
(2) the premises must not be searched and no items shall be removed from them except in the
presence of the respondent or a person who appears to be a responsible employee of the
respondent,
(3) where copies of documents are sought, the documents should be retained for no more than 2
days before return to the owner,
(8) if any of the listed items exists only in computer readable form, the respondent must immediately
give the applicant's solicitors effective access to the computers, with all necessary passwords, to
enable them to be searched,
(9) the applicant must take all reasonable steps to ensure that no damage is done to any computer or
data,
(10) the applicant and his representatives may not themselves search the respondent's computers
unless they have sufficient expertise to do so without damaging the respondent's system,
(13) where the Supervising Solicitor is satisfied that full compliance with paragraph 7.5(7) and (8)
above is impracticable, he may permit the search to proceed and items to be removed without
compliance with the impracticable requirements.
IF CANT SET ASIDE THEN:
GENERAL
INFORMATION
ABOUT
SEARCH
ORDERS
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Undertakings - Undertaking as to damages from C (compensation if oppressive + confidentiality)
(schedule 3) - Applicant’s solicitor
o Safe-keeping of docs
- SS’s solicitor
o Explain effects of order
o Inform respondent of right to legal advice
o Provide report
- If solicitors make mistakes: contempt of court
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ESTABLISING JURISDICTION (EU AND RoW)
3. Is there exclusive jurisdiction under Art.22? IF YES THE REGS WILL NOT APPLY
- State where the registration was applied for or has taken place.
- if the dispute is about whether they have been infringed, the normal rules apply
- Article 22(4)
- Exclusive jurisdiction in the courts of the state where the property is situated
- any claim for any equitable remedy (eg specific performance) claimant free to sue in
the defendant’s local court if he so chose.
- Article 22(1)
- Any dispute arising out of the enforcement of a judgement must be heard in the State
where judgement is being enforced (Art.22(5))
- insured can choose to sue in own home court or insurer’s home court
- insurer must sue in insured’s home court (Article 12(1)
- liability insurers and insurers of property can be sued in MS court where cause of
action
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5. Has the D submitted to the jurisdiction? Eg filed defence / failed to make app to
challenge jurisdiction in time… if not:
4. Also submit if D files acknowledgement of service saying they intend to challenge Juris.
AND then fail to make application within time limit (28 days from acknowledgement of
service if commercial or mercantile court, 14 days in all other cases)
If the parties agree to confer juris. to specific court then that specific court will have juris.
Cant contract out of exclusive juris. rules (Art 22) (ie insurance and insurance etc)
1. D to be sued where they’re domiciled if all of above don’t apply (or no alternative stated
below can be used) Three months’ residence will prima facie establish domicile (s.41)
2. S.41 of Civil Juris & Judgement Act 1982
- Individual domiciled in England and Wales if they’re resident there, and
- Nature and circumstances of their residence indicate substantial connection with UK
3. Art 60 – Domicile of company registered office or p/s – where is has its statutory seat,
central admin or principal place of business.
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o IF mixed goods and services – services prevail
- Can issue proceeding in MS where tort committed or where harm occurred or may occur
- A court can hear a case under this rule even though only part of the harm was caused
within its jurisdiction (Shevill v Presse Alliance SA)
- the court for the State where the harm occurred can only award remedies for the harm
which occurred in that State.
9. What if the other side win the race – has it been first seized?
Where proceedings have been started first – that will mean case is seized. (Art.30)
- Same parties AND same cause of action = English court cannot hear if proceedings
started elsewhere (Art.27)
- Related cause of action = English court have a discretion to accept juris (Art.28)
IF ONE OF THE PART 6.20 AND 6.21 - PERMISSION TO SERVE OUT OF THE JURISDICTION
PARTIES IS
SERVICE OUT CHECKLIST (REST OF THE WORLD)
DOMICILED IN
THE REST OF 1. Is D of EU domicile / seat? NO….
THE WORLD
2. Can D be served within England and Wales? Either while they are in E&W or at
place of business in E&W?
3. Do any of the Rule 6.20 grounds for service outside of juris apply?
- Claim made for injunction against D to do, or stop doing an act within the juris (r.6.20(2))
- When C wants 3rd party to join in action and 3rd party outside of juris: (r.6.20(3)
Can serve outside juris if:
o already, or about to, serve claim form on D (who’s in EU or UK), AND
o C and D have real issue between them that’s reasonable for court to try, AND
o 3rd party is necessary or proper party to that claim
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o Made within Juris (r.6.20(5)(a)), or
o Made by / through agent trading or residing in Juris (r.6.20(5)(b)), or
o Governed by English Law (r.6.20(5)(c)), or
o Has a term stating English court has Juris (r.6.20(5)(d)), or
o Breach committed within Juris (r.6.20(6)) – place of performance
- Claim is Part 20 claim AND person to be served is necessary or proper party to claim
(r.6.20(3A)
5. Is England and Wales the proper place to bring the claim? Rule 6.21(2A)
NB – show connection with England – as many as possible reasons / rules
For example:
- Where is most convenient place?
- Where are the witnesses based?
- Where is the majority of the evidence located?
- Where was the contract negotiated / concluded?
- Where do each party have their offices?
- Where was place of performance?
BOTH PARTIES USED WHEN ANOTHER MS COURT IS ALREADY SEIZED OF THE MATTER (ART 27)
BASED IN EU
(BRUSSELS REG’S) Which one of following circumstances apply on the facts:
1. Acknowledge service of Particular of Claim (or claim form if its in commercial (r58.6(3)) or
mercantile court (r.59.5(3)) within 21 days (PD 6B, para 7.3) and state intention to
challenge jurisdiction.
2. Apply to court to challenge juris. on grounds that English court doesn’t have calid juris
(FORM N244).
- Within 14 days of filing acknowledgement of service (28 days if commercial
(r.58.7(2) or mercantile (r.59.6(2))
- Along with evidence (r11(4))
3. If don’t apply within time limit then deemed as having submitted to English courts juris.
(r11(5))
4. DON’T file a defence as doing so will be deemed to have submitted to English Juris.
- GO through Brussels reg’s checklist (above) and claim the court doesn’t have valid juris
under the regs.
o If D sued in English courts because C claims D domiciled there? Can D challenge
this? Is D’s statutory seat outside the UK? Try to show that D has no real
connection with UK.
o Any exclusive juris apply under Art.22?
o Anything in their contract that equates to a exclusive jurisdiction clause?
o Any of the alternatives apply?
ONE OF THE PROCEDURE: (WHEN WANT TO CHALLENGE THAT ENGLISH COURT ISNT JURIS)
PARTIES IS BASED
OUTSIDE THE EU 1. Acknowledge service of Particular of Claim and state intention to challenge jurisdiction.
The time for doing so is set out in the PD 6B to Part 6 para 7.2 and 7.3. FIND the relevant
amount of days in table below.
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Place or country Days Place or country Days Place or country Days
Holland
Abu Dhabi 22 21 Puerto Rico 23
(Netherlands)
Afghanistan 23 Honduras 24 Qatar 23
Albania 25 Hong Kong 31 Reunion 31
Algeria 22 Hungary 22 Romania 22
Angola 22 Iceland 22 Russia 21
Anguilla 31 India 23 Rwanda 23
Antigua 23 Indonesia 22 Sabah 23
Antilles (Netherlands) 31 Iran 22 St. Helena 31
Argentina 22 Iraq 22 St. Kitts--Nevis 24
Armenia 21 Ireland (Republic) 21 St. Lucia 24
Ascension 31 Ireland (Northern) 21 St. Pierre 31
Australia 25 Isle of Man 18 St. Vincent 24
Austria 21 Israel 22 Samoa 30
Azores 23 Italy 21 Sarawak 28
Bahamas 22 Ivory Coast 22 Saudi Arabia 24
Bahrain 22 Jamaica 22 Scotland 21
Balearic Islands 21 Japan 23 Senegal 22
Bangladesh 23 Jersey 18 Seychelles 22
Barbados 23 Jordan 23 Sharjah 24
Belarus 21 Kampuchea 38 Sierra Leone 22
Belgium 21 Kazakhstan 21 Singapore 22
Belize 23 Kenya 22 Slovakia 21
Benin 25 Kirgizstan 21 Slovenia 21
Bermuda 31 Korea (North) 28 Society Islands 31
Bhutan 28 Korea (South) 24 Solomon Islands 29
Bolivia 23 Kuwait 22 Somali 22
Bosnia-Hercegovina 21 Laos 30 South Africa 22
Botswana 23 Latvia 21 South Georgia 31
Brazil 22 Lebanon 22 South Orkneys 21
Brunei 25 Lesotho 23 South Shetlands 21
Bulgaria 23 Liberia 22 Spain 21
Burkina Faso 23 Libya 21 North Africa 31
Burma 23 Liechtenstein 21 Sri Lanka 23
Burundi 22 Lithuania 21 Sudan 22
Cameroon 22 Luxembourg 21 Suriname 22
Canada 22 Macau 31 Swaziland 22
Canary Islands 22 Macedonia 21 Sweden 21
Cape Verde Islands 25 Madagascar 23 Switzerland 21
Caroline Islands 31 Madeira 31 Syria 23
Cayman Islands 31 Malawi 23 Taiwan 23
Central African 25 Malaya 24 Tajikistan 21
Chad 25 Maldive Islands 26 Tanzania 22
Chile 22 Mali 25 Thailand 23
China 24 Malta 21 Tibet 34
Christmas Island 27 Mariana Islands 26 Tobago 23
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ARBITRATION – ITUT AND WS 8
Checklist:
• Valid arbitration clause / agreement? (if no would they agree anyway?)
o If binding then cant commence proceedings
• Does it cover this dispute?
• Has time limit for commencing Arbitration expired?
o Ask Arbitrator thenb S.12 apply to court
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Guiding principles - Fair resolution of disputes - s. 1
- Impartial tribunal
- Without unnecessary expense/delay
Terms of - Should have a phrase that covers disputes “with reference to the contract” Case Law
arbitration - Disputes “arising out of or under the contract” includes rectification of the contract but not where
agreement parties have actually formed a contract
- Doctrine of precedent should not be rigidly applied- see circumstances as a whole
- “in connection with the contract” includes disputes about pre-contract mistake and
misrepresentation
- best clause to include for arbitration: “any dispute arising out of or in connection with this contract
shall be referred to and finally resolved by arbitration under the Rules of the Chartered Institute of
Arbitrators, which rules are deemed to be incorporated by reference to this clause”.
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LITIGATION – ITUT AND WS 1
WHICH REMEMBER FINACIAL LIMITS FOR THE DIFFERENT COURTS AND THE TYPE OF CLAIM THEY DEAL WITH
COURT
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COURT INFORMATION
Allocation to track will depend on a number of things (see p97) including value of claim,
complexity of case, importance to the public etc (see rule 26.8(1))
STAGE DURATION
o Scope?
o How long?
o Where?
Inspection 1 week
Trial 8 weeks
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Case management - all cases have CMCs para D3.1 CCG
- date can’t be changed except for court order
- incl. progress monitoring info sheet
- pre-trial checklist
- PF 58 para 10.2: C’s responsibility within 14 days of date when all respondents
filed defence
o Otherwise any other party or court
Contents of Case - C’s Solicitor obliged to update bundle and revise it. D7.5 when it needs revising
Management - Claim form
Bundle - All statements of case
- Case memorandum
- List of issues
- Case management information sheets
- Pre-trial timetable (if agreed)
- Principal orders of the court
- Any agreement in writing as to disclosure
o CPR 29.5 - Date for CMC can only be altered by order of the court
o CPR 29.3(2) and Commercial Court Guide para D8.2 - Must be attended by legal
representative with knowledge of the issues and at least one of the advocates
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TACTICS – PRE COMMENCEMENT I TUT AND WS 5
- s. 123(1)f IA 1986: unable to pay - effective threat - less scope for negotiations
its debts - cheap and easy - other people can come
- s. 123 IA 1986 >750 undisputed - if not paid: public forward and rank higher as
debt/judgement order/unable to knowledge (petition creditors
pay its debts as they fall due to wind up is - if company does not have
- warn debtor that the company may advertised) money- waste of time
be wound up if no payment within
3 weeks
- service at registered office or
recorded delivery
- s. 268 IA 1986: unable to pay its - will serve solvent - puts other creditors on notice
debts if: undisputed debt debtor into action (i.e. mortgage ranks higher)
>750/judgement debt (solvent debtor gets - expensive if bankruptcy
- 18 days to apply to set it aside more time to pay) initiated
because the debts is - cheap to make - only available for undisputed
disputed/demand improperly demand if payment debt (here debtor’s position
served or errors received unknown)
- prescribed form for immediate - individuals have more - useless if insolvent
debt IR6 assets (on the facts)
- service IR6.3- personal service - more public stigma
(“all that is reasonable” will suffice- attached
incl. post) - other creditors may
- IR6.11 creditor can rely on any not have personal
acknowledgement of receipts guarantees
- 3 weeks (not including date of - can stay proceedings
service) to pay up (s. 270 by other creditors
exception if serious risk of
depletion of assets)
- must show that it is unfair to rely
on stat. demand to prove that
unable to pay its debts
(counterclaim/security for
cots/demand ought to be set aside
on other grounds)
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SUMMARY o Summary Judgment – CPR 24.2
JUDGEMENT
BY C OR D? The court may give summary judgment against a claimant or defendant on the whole of a claim…if
II. that the defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case… should be disposed of at trial”
- CPR 24.4(3) - Applicant must give at least 14 days notice of the hearing and file evidence in support
- CPR 24.5(1) – respondent may file evidence in reply at least 7 days before the hearing
- CPR 24.5(2) – the applicant may respond by filing evidence at least 3 days before the hearing
- Debtor can only afford to pay some but not all debts
- Debtor cannot afford to pay any debts
- Debtor can afford to pay but is delaying to put off the date of payment
- Debtor has a genuine dispute about whether the debt is due
o Proceedings stayed
o Execution void
- Waste of costs
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Issue proceedings against the company
The form C uses depends on whether the claim is for a specified / unspecified amount (see FORMS
N205A, N205B, N225, N227)
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(d) D has not admitted liability for the full amount of the claim
Interest – default judgment may include interest, in the claim for a specified amount, if:
MANDATORY (r13.2)
Court is obliged to set aside a default judgment that was wrongly entered before the defendant’s
deadline for acknowledgment / defence expired. Court is also obliged to set aside a default judgment
entered after the claim was paid in full.
DISCRETIONARY r13.3(1)
ANALYSE FACTUAL ISSUES THAT MAY ARISE WHEN APPLYING TO SET ASIDE A DEFAULT
JUDGMENT (see p113)
C has a duty (if he knows D didn’t get the PoC) to set asise the default judgment himself or apply to the
court for directions (rule13.5)
CPR 25.7 - The court may order an interim payment only if-
(a) the defendant against whom the order is sought has admitted liability to pay damages or some other
sum of money to the claimant;
(b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum
of money (other than costs) to be assessed;
(c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial
amount of money (other than costs) against the defendant from whom he is seeking an order for an
interim payment
- Make a written request for payment first in accordance with the overriding objective
- CPR 25.6(1) - Apply after the time for acknowledging service has expired
- CPR 25.6(3) – the application notice and evidence must be served at least 14 days before the
hearing
- CPR 25.6(4) – the respondent may serve written evidence in response at least 7 days before the
hearing
- CPR 25.6(5) – the applicant may respond by serving written evidence at least 3 days before the
hearing
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- CPR 25.7(4) A reasonable proportion –
o Rule of thumb – 60% of lowest estimate of damages
- Part 25.13(2)(a) the claimant is resident outside the jurisdiction + not in a Brussels convention state
- Part 25.13(2)(c) claimant is a company or other body and there is reason to believe that it will be
unable to pay the defendant’s costs if ordered to do so
- Part 25.13(2)(d) the claimant has changed address since the claim was commenced with a view to
evading the consequences of the litigation
- Part 25.13(2)(e) the claimant failed to give his address in the claim form or gave an incorrect
address in that form
- Part 25.13(2)(f) the claimant is acting as nominal claimant and there is reason to believe that he will
be unable to pay the defendant’s costs if ordered to do so
- Part 25.13(2)(g) the claimant has taken steps in relation to his assets that would make it difficult to
enforce an order for costs against him
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ATTENTION - Only if defendant us concerned about recovering his costs
- always ask the opponent first before making a formal application
o Ask if assets in the jurisdiction
o Enclose disclosure of costs
- Use appendix 16: does not have to take into account merits of the case
- R 3.1(5) court can order security for costs when fails to comply with CMC
SETTLEMENT
/ENFORCEM
ENT
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Assets Enforcement Further info required
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ADR
Strategy and In view of this, the solicitor needs to keep numerous points in mind at the start of a case, including the
Tactics following:
• What is the appropriate method of dispute resolution to best achieve the client’s aims?
• Is the client’s priority a quick settlement – possibly to avoid incurring legal costs ‘unnecessarily’?
• Does the client want to preserve the business relationship with the other party?
• How will the dispute, and possibly the chosen method of resolution affect relationships with other
customers or suppliers? Clients will not generally want to be seen as a ‘soft touch’.
• Will the knowledge that your client is willing to resort to litigation in order to enforce or preserve his rights
deter others from attempting to infringe those rights?
• Is the other party involved in the dispute solvent?
• Does the client want the legally correct solution to the dispute, the cheapest solution or the quickest
solution?
ADR - The court has power to make an order for the parties to attempt ADR even if neither party wants to do so
CCG 1.8
- The court will stay proceedings to enable ADR to be attempted CCG1.7
- A party who unreasonably refuses to attempt ADR may be penalised in costs. CCG1.10
Advantages Disadvantages
- cheapness and speed (APPLY TO FACTS) - it does not bind the parties to the procedure
- flexibility - the awards are not so easily enforceable
- preserving a business relationship - the facts may not be fully disclosed
- commercial reality - no appropriate for cases such as: client needs an
injunction, there is no dispute, the client needs a
ruling on a point of law
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TYPE INVOLVES: ADVANTAGES DISADVANTAGES
ARBITRATION - third party reaches a decision - arbitration may be quicker - Certain remedies, such as
which is binding on the parties. than litigation; injunctions, are not
- Many business contracts - the procedures are less available
contain an arbitration clause formal and occur in private; - depending on the
- In the absence of such a clause, - the solutions reached are procedures adopted, the
the parties in dispute may agree often more practical than dispute may not receive
to arbitration once the dispute those a court has power to the depth of investigation it
has arisen and may choose order; and would have done in the
their own arbitrator with the - at the same time those courts.
relevant expertise. decisions are binding on the - not always necessarily
- governed by statute, namely the parties. cheaper than litigation.
Arbitration Act 1996 - Arbitration Act 1996, s.66:
enforcement of judgments by
the High Court
MEDIATION AND - third party who has been - quick because, if necessary, - if party refuses mediation:
CONCILIATION selected as mediator will have the parties can meet face to o The Court may order a
written statements from both face to iron out their stay of the litigation to
parties. differences. enable mediation to take
- mediator will discuss the case - A mediator may only disclose place.
with them. They will tell him to the other party information o The Court may penalise
what they think about each provided by one party with that party in costs
party’s case on a without that party's permission o The Court may suggest
prejudice basis. that that party reconsider
- mediator will not pass on to the
other party information which is
confidential, unless given
permission
‘MED-ARB’ - parties agree to submit their - Save costs - mediator will have become
dispute to mediation privy to confidential
- if this does not work, they will information belonging to
refer the matter to arbitration. one of the parties.
- Can use the person who has
been acting as their mediator as
their arbitrator
Rule 1.2 requires the court to give effect to the overriding objective and r 1.4(1) states that:
The court must further the overriding objective by actively managing cases.
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;…
(f) helping the parties to settle the whole or part of the case;
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(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it.
The parties are expected to help the court to further the overriding objective.
Solicitors are under a duty to ensure that clients are both aware of and comply with r 1.3 in the conduct of
litigation. One important purpose of r 1.3 and CPR 1998 generally is to dissuade parties from deliberate
delaying tactics in litigation in an attempt to force their opponent to settle the case on unfavourable terms due
to concerns over escalating costs.
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