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LPC Law Notes Commercial Dispute Resolution Notes

Unit 1 – Initial Steps In Resolving A Commercial Dispute Notes

Updated Unit 1 – Initial Steps In Resolving A Commercial Dispute Notes

Commercial Dispute Resolution Notes

Commercial Dispute Resolution

Approximately 305 pages

A collection of the best Commercial Dispute Resolution notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of Commercial Dispute Resolution notes available in the UK this year. This collection ...

The following is a more accessible plain text extract of the PDF sample above, taken from our Commercial Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Unit 1 – Initial steps in resolving a commercial dispute consolidation

r = CPR rule

Commercial litigation:

(More than one court may be appropriate given the claim)

  • Carried out in the country courts and QBD of High court but there are specialist courts:

  • QBD

  1. Commercial court – commercial and mercantile disputes

    • business doc or contract

    • export/import of goods

    • carriage of goods by land, air or pipeline

    • exploitation of oil and gas reserves or other natural resources

    • insurance/re-insurance

    • banking and financial services

    • operation of markets and exchanges

    • purchase and sale of commodities

    • construction of ships

    • business agency

    • arbitration

  2. Mercantile court in London – disputes which are less complex or of smaller value that the commercial court

  3. Regional Equivalents of a) and b) – Birmingham, Bristol, Cardiff, Mold, Leeds, Liverpool, Manchester and Newcastle

  4. TCC – construction and engineering disputes as well as those of a technical nature. Sits in London but District registries in which a TCC judge sit are available in Birmingham, Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool, Newcastle, Nottingham and Salford. TCC claims may also be issued in country courts of above locations as well as Central London Country Court

    • building/construction disputes

    • engineering disputes

    • claims by/against architects, surveyors, accountants, specialist advisors, local authority regarding stat duties over development of land or construction of buildings

    • Claims related to design, supply and installation of computers, software and networks

    • Claims relating to quality of goods sold/hired, word done, materials supplied, services rendered

    • Claim between L and T for breach of repair cov

    • Claim between neighbours, owners/occupiers of land for trespass/nuisance

    • Claims related to environment (pollution)

    • Claims arising out of fires

    • Claims involving taking of account where complex

    • Decisions of arbitrator in construction and engineering deposited including app for permission to appeal

  • Chancery Division, general list– bankruptcy, dissolution of partnerships, matters affecting affairs of co, commercial property/unregistered IP rights (passing off, UDR, , implied confidential info)

  • Chancery Division, companies court – Constitution of a company/ insolvency of co’s

  • Chancery Division, bankruptcy court – Bankruptcy of individuals

  • Chancery Division, Patents court – Registered IP rights (TM, RDR, Patents)

ADR:

  • CPR 1.4(2)(e) one of courts case management powers as “encouraging the parties to use an alternative dispute procedure if the court considers that appropriate and facilitating the use of such procedure”

  • Sol who fails to advise on availability of ADR may be negligent

  • Could almost amount to breach of P4 (not acting in best interests of client)

Arbitration:

  • Arbitration clause requires arbitration

  • Dispute decided by one or more arbitrators who are usually experts chosen from a particular field/professional body

  • The decision (arbitration award) is binding on the parties and enforceable through the courts

Adv. of arbitration over litigation:

  • Parties choose own arbitrator(s) who have professional experience

  • Less need for parties to call their own expert evidence

  • Saving of time and therefore of costs

  • No fixed procedure (parties have preliminary meeting with arbitrator where they work out timetable for arbitration and procedure)

  • Formal hearing

  • Informal site meeting

  • Documents only

  • Can take place at a time and place which suits parties

  • Total privacy is possible (trade secrets)

  • Greater finality because there is no appeal on question of fact

Dis. of arbitration

  • If dispute is over a point of law then arbitration isn’t suitable

  • Dispute may require remedies that only the court can give (enforcement of an injunction)

  • S.44 Arbitration act 1996 enables the court to supplement arbitrators powers but they are still usually best dealt with by litigation

  • Not cheap – lawyers charge same prices as litigation, parties have to hire a room for the hearing and pay the arbitrator (experienced professional) his fee

Funding the action:

CFA - can be used by clients who would be able to fund the litigation themselves

ATE – premiums will be high

TP funding – both own and opponents costs in return for a share of any money recovered by C 25-50% (last resort)

Jackson Report:

  1. Abolition of recovery of success fees and ATE insurance premiums - s.44/46 LASPO 2012

  2. Banning of referral fees in personal injury cases

  3. Allowing the use of contingency fees in contentious work – s.45 LASPO 2012 (DBA’s – see below)

  4. Fixed pre-trial costs in fast track cases

  5. Unsuccessful C would not be required to pay the successful D costs – s.55 LASPO 2012

  6. A voluntary code of conduct for TP litigation funders

  7. Greater case management powers for courts (costs management). Allocating judges who have relevant experience. Limit the length of WS and expert reports. Hot tubbing experts (expert evidence of both sides heard concurrently on issue by issue basis)

  8. Greater incentives to accept settlement (automatic 10 increase in damages where D fails to beat C Part 36 offer)

  9. Encouraged but not mandatory ADR

DBA’s:

  • S.45 LASPO 2012

  • DBA must comply with s.58AA Courts and Legal Services Act 1990 and the Damages Based Agreements Regs 2013 (SI 2013/609):

  • Must in writing

  • Must specify claim/proceedings (parts of them) which agreement relates

  • Circs which representatives payment, expenses and costs (or part) are payable

  • Reason for setting amount of payment at level agreed

  • In non-personal injury cases maximum % permitted is 50% of the sums recovered (including VAT and counsel fee BUT NOT other disbursements)

  • Sol costs under DBA can only be taken from monies recovered

  • Costs recovered under DBA are taken away from the % of the damages so the solicitor doesn’t get them twice

  • If case lost sol receives nothing and C must pay D costs

  • Can only be used when acting for a party who may recover money – C

Limitation Issues:

  • LA 1980 – 6 years from when the cause of action arises in...

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