CIVIL LITIGATION 2023-2024: KNOWLEDGE QUESTIONS FOR REVISION

Question	Answer
Introductory Content
What is the overriding objective?	To deal with cases justly and at a proportionate cost.
How will the court further the overriding objective?	By actively managing cases, encouraging cooperation, discouraging unreasonable conduct, using costs as an incentive and encouraging ADR.
Should the court provide support for the use of ADR?	The courts should provide support for the use of ADR, and should do so through case management and sanctions. But ADR is not compulsory.
Can the court compel parties to use ADR?	No. But it can direct them to consider ADR at a case management conference or pre-trial review.
What happens if the party refuses to consider ADR?	Where there is unreasonable refusal to consider ADR, the court has the power to deprive the winning party of some or all of their costs.
What happens if a party is silent in the face of ADR?	This will be considered an unreasonable refusal to consider ADR.
Can parties stay for ADR?	Yes, parties can choose to stay for one month to try and settle, or say why they cannot do this. If a stay is granted, the parties must keep the court informed.
What if a party believes they have reasonable grounds for refusing to engage with ADR?	If so, the party must respond to the offer in writing, promptly and giving full reasons.
Limitation Periods
What is the limitation period for a cause of action in tort?	6 years from the date of the wrongful act for cases actionable per se, for cases requiring proof of damage, 6 years from the date on which the damage occurred.
What is the limitation period for a cause of action in simple contract?	6 years from when the contract failed to be performed, e.g from the date of delivery. Time will start to run the next day.
What is the limitation period for recovering contribution?	2 years from either the date of judgment of arbitral award or, if payments were agreed, earliest date on which amount was agreed between the parties. Admitting full vs partial liability does not affect this.
What is the limitation period for personal injury?	3 years from the date of actual injury or knowledge, if later, of the injured person. If the injured person dies within that period, it’s three from the date of death or date of the first personal representative’s first knowledge of the death.
What is the limitation period for fatal accidents?	3 years from the date of accident/injury or date of knowledge if later. This can only be brought if death occurred when the deceased could have brought the action, e.g within the three year time limit
What is the limitation period for negligence in tort where the relevant facts are not known at the date of accrual? For claims other than personal injury.	6 years from the accrual of the damage or 3 years from the earliest date when C or any person in whom the cause of action vested had both knowledge and right. Longstop of 15 years.
What is the limitation period for enforcement?	6 years from the date on which judgment became enforceable
What is the limitation period where there is fraud, concealment or mistake?	Whatever the relevant limitation period is but from the date the claimant discovered or could have discovered with reasonable diligence the cause of action.
What about if the claimant is under a disability?	Time does not start to run. If under 18, time does not start to run until they are 18. Disability will override a longstop.
What about where there is latent damage?	Generally, 15 year longstop.
When does time expire?	On the anniversary of the breach.
When does time cease to run?	When the claimant issues proceedings.
Pre-Action Conduct and ADR
When should parties engage in pre-action protocols?	C should write with D with concise details of the claims, D should respond in 14 days in a straightforward claim and no more than 3 months in a complex one.
Can the parties vary pre-action protocols?	Yes, the protocol can be varied by the parties, but the courts will require an explanation.
What happens if pre-action protocols are not complied with?	The court may impose sanctions, they will consider whether the parties have complied in substance to the relevant requirements and principles.
When does the timeline start?	When the letter of claim if issued.
Can the sender of a letter of claim change their position?	Yes they can, as long as it is justified.
Are there any specific protocols for personal injury claims?	C should notify D before a detailed letter of claim is sent, D must respond within 21 days. If there is no response, C is entitled to issue proceedings. Parties should consider the evidence and arguments 7-14 days before the intended issue date to ‘stock take.;
Can parties reject to an expert?	Yes, within 14 days. If D objects to them all, parties may choose their own.
Does C need permission to rely on an experts report?	Yes
What happens if a party fails to comply with a practice direction/protocol?	Minor lapses will be ignored.
Are there any genuine justifications for failure to comply with a protocol?	Yes. including a limitation period is about to expire or a need to take action urgently.
How will the court decide to impose sanctions for failure to comply?	The court will look at the overall effect of non-compliance. If non-compliance has led to a claim being started that might otherwise have been avoided, or has led to costs being incurred that would otherwise not have been incurred, the court will consider imposing sanctions.
What may the court do where there has been non-compliance with a practice direction?	The court may relieve the parties of the obligation to comply with it.
What sanctions will the court consider?	Staying the proceedings, ordering the party at fault pags the costs, paying costs on an indemnity basis, depriving interest, interest at a higher rate, and contempt of court.
What resort should litigation be?	Litigation should be a last resort. There should be a final review before proceedings are issued to see if proceedings can be avoided or issues narrowed.
When should parties consider the possibility of reaching a settlement?	Parties should consider the possibility of reaching a settlement at all times, including after proceedings have been started.
Adjudicative and non-adjudicative methods of dispute resolution
Is there a set procedure to negotiation?	No.
Does negotiation have to be in writing to be binding?	No,
Does a solicitor have authority to settle on behalf of a client?	Yes, unless there is anything on the facts to indicate that they don’t and that a solicitor’s agreement is not binding/requires the client’s approval to settle.
Describe mediation.	Confidential, neutral third party facilitates discussions, can take place at any time, is made without prejudice.
Can you put in evidence what took place at the mediation?	No, what occurs in mediation is confidential save for the resulting agreement an the fact that mediation took place.
Does conflicting evidence suggest that mediation is unsuitable?	No
Can mediation take place where proceedings have been issued?	Yes, this is often where ADR is best used.
What factors expressly point to mediation?	Parties wanting to maintain relationships and deal with issues not raised in litigation.
Is ADR inappropriate where enforcement is a concern of the parties?	No, it is still appropriate, particularly due to the use of Tomlin orders.
Describe conciliation.	Neutral third party facilitates, non-binding, not appropriate in debt claims.
Describe ENE.	Written assessment of issues by an independent third party, ENE can be carried out by a judge, can be ordered where one party does not consent, manner is decided by the evaluator who may consult the parties. Both parties do not have to agree.
Can ENE only be used before a trial?	No, ENE can be used after the trial has concluded, e.g when issues arise in the assessment of costs.
Does ENE have to be separate from litigation?	No, there can be judicial evaluation
Can ENE be conducted by just one party?	Yes, in relation to their own issues.
What is a benefit of ENE?	Parties can agree between themselves to control the amount and form of information before the evaluator.
What a particularly good use of judicial ENE?	Where there is a contentious legal issue in dispute.
Describe complaints procedures.	Internal processes. Parties should go through these first.
Describe arbitration.	Application to say, arbitration claim form, arbitration must be served from 1 month of date of issue, enforced by bringing an ordinary civil claim.
Describe expert determination.	Parties can contractually bind themselves to this, court can stay for this, suitable for highly technical disputes, parties will usually agree for it to be binding but this is not automatic.
What happens when a party has honoured their contractual obligations to use expert determination?	Although expert determination can be challenged an set aside, it is not going to be so when the expert does all they were supposed to do under their obligations.
The Claim Form
What must the claim form contain?	A concise statement of the nature of the claim; Specify the remedy which the claimant seeks; A statement of value where the claimant is making a claim for money; A statement of the interest accrued on that sum where the only claim is for a specified sum; and Any such other matters.
Where a solicitor tells the other party in writing that they are instructed to...

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