01. General Matters Flashcards
What is the Overriding Objective?
To deal with cases justly and at proportionate cost
What does applying the Overriding Objective include?
- Equal Footing
- Saving expense
- Proportional to money involved
- Proportional to importance of the case
- Proportional to the complexity of the case
- proportional to the financial positions of the parties
- Dealing with it expeditiously and fairly
- Proportional share of court’s resources
- Enforcing PDs and Rules
When should the court apply the Overriding Objective?
When exercising any power in relation to the Rules (= always)
Does the Overriding Objective apply to the parties?
Yes - they have a duty to further Overriding Objective
Active Case Management includes:
11 things
- Encouraging cooperation
- Identifying Issues Early
- Deciding which issues need trial & disposing of others
- Deciding the order in which issues are resolved
- Encouraging ADR
- Helping the parties to settle
- Fixing timetables
- Considering whether steps are justified by their costs
- Dealing with as many issues as possible on each occassion
- Dealing with the case without parties needing to attend
- giving directions to ensure the trial of a case proceeds quickly and efficiently
What ‘levers’ does the court use to encourage cooperation?
Costs
Disclosure
Does the need for cooperation between the parties required one to remind the other about procedural time-limits?
No - can’t be unreasonable, but not your responsibility to help someone bring a claim against you
Can the court order/carry out an Early Neutral Evaluation as part of furthering the Overriding Objective?
Yes - used as part of the process of assessing the proper issues for trial
What duty do barristers have to engage in ADR? When does it apply?
To engage in ADR whenever it presents a reasonable prospect of producing a just settlement at a proportionate cost
Throughout litigation (not just pre-action)
What are the 6 types of ADR
Caldebank/Part 36 Offers
Negotiation
Mediation
Early Neutral Evaluation
Expert Determination
Arbitration
Which types of ADR are adjudicative?
Expert Determination
Arbitration
Describe the operation of a Calderbank Offer
A without prejudice offer (normally save as to costs) which can be accepted or rejected by the other side
Describe the operation of Negotiation
Simple manner in which offers are exchanged either by the parties or by lawyers on behalf of the parties.
Can take place in person (Settlement meetings) or by correspondence.
Informal process which is binding if an agreement is reached.
Describe the operation of a Mediation
Essentially a negotiation, but with a neutral party who operates as the go-between.
Will often act as a shuttle-diplomat and go between parties. Can also act as a devil’s advocate or reality checker
Usually governed by a contractual agreement - this will govern what each party does before and during the mediation. In particular it will set out what documents and statements need to exchanged beforehand
The mediation agreement will usually include an express term that nothing is agreed unless an agreement is signed between the parties. In this way, the mediation is on the parties’ terms.
Describe the operation of Early Neutral Evaluation
A neutral third party is appointed to give an non-binding evaluation of one of more of the issues in the litigation.
This can be a factual or legal evaluation, and can be carried out by the judge (as allowed under r.3.1(2)(m)).
Often used where there is a dispute that will involve expert witnesses anyway, which will allow both sides to see how the litigation could progress and then make a decision on how to proceed to settle the case.
Describe the operation of Expert Determination
A contractual process by which an expert is appointed by the parties to decide an issue between the parties.
The determination made by the expert is binding, as per the contract which established the determination process.
It is used very often in cases where the court would need to decide with the input of a great many experts. Also, where a definite answer from an expert will go to the heart of an issue (for instance in valuation cases of real property and other commodities)
Can take place on the papers or can have a hearing. The expert may also carry out their own investigations
It can only be challenged on limited grounds: Fraud, manifest error (if contract says so), material departure from instructions, no reasons given, error of law or construction.
Describe the operation of Arbitration
Most formal of the ADR processes. A contract binds the parties into a process whereby an arbitrator decides the issues which are the subject of the arbitration agreement.
The arbitration processes are institutional and where it takes place can be governed by the underlying contract which is in dispute.
The decision of the arbitrator is binding and can be enforced in court and internationally under the New York Convention 1958.
Where an arbitration agreement is formed, the court will stay the proceedings for all parties. It is only if all parties agree to rescind the arbitration agreement that the parties can then continue to litigate.
What is the relevance of Halsey v Milton Keynes General NHS Trust for case management
Court of Appeal found that the court can make a case management direction which forces the parties to consider ADR.
Strongest form of encouragement, but is not compulsion.
What is the relevance of Halsey v Milton Keynes General NHS Trust for costs
The usual rule for costs (that they follow the event) should be departed from where it us shown the successful party acted unreasonably in refusing to agree to ADR.
Unsuccessful party bears the burden of proof
Court will consider; nature of the dispute; merits of the case; extend to which other methods were attempted; whether ADR would be disproportionately costly; whether the delay caused by ADR would have been prejudicial; whether ADR had a reasonable prospect of success
When will the court make a Halsey costs order
Where the successful party has refused to engage in ADR unreasonably
Does not apply where they simply don’t initiate ADR
Can apply if the successful party is silent in the face of an offer of ADR
Relevance of Churchill v Methyr Tydfil CBC [2023]
The Court can lawfully stay proceedings and order the parties engage in ADR so long as that order does not infringe the right to a judicial hearing.
Essentially means they can order non-adjudicative ADR under Churchill, but not adjudicative
