04 - Neutral and Expert Flashcards
Early Neutral Evaluation
WHAT
Evaluative Process
NOT Determinative
Voluntary
Non Binding
Evaluate
WHAT
Legal Merits Facts Evidence Remedies => Recommendation Likely Outcome
Evaluation
WHEN
ANY Stage
Contract Clause
Request
Evaluator
WHO
ADR Provider
Expert = Expert Evaluation
Lawyer
Judge
Evaluator
Qualities
Neutral Expertise Experience Available Cost
Evaluator
Role
Evaluate
MAY Investigate = Facts Finding; Forensic Analysis
Early Neutral Evaluation
Agreement Terms
Parties Evaluator Timetable Venue Procedure Issues Documents Information Recommendation Costs; Signature
Early Neutral Evaluation
Procedure
Consultation Submissions = Oral; Written Evaluate MAY Investigate Next Steps = ADR; Litigation
Early Neutral Evaluation
Consultation
Issues
Documents
Information
Evaluator = Time Limits; Powers
Early Neutral Evaluation
Recommendation Report
Evaluation = Law; Facts; Evidence; Remedies Recommendation = Merits; Likely Outcome; Reasons
Judicial Evaluation
WHAT
Evaluative Process
NOT Determinative
Voluntary
Non Binding
Judicial Evaluation
WHERE
Commercial Court
Technology AND Construction Court
Judicial Evaluation
WHO
Independent Judge
NO Involvement = Prevent Bias; Unless Consent
Judicial Evaluation
Court MAY
Provide Evaluation
Indicate Likely Outcome
Judicial Evaluation
Requirements
Party Agreement
Judge MUST Approve
MUST Aid Resolution
Expert Determination
WHAT
Determinative Process
NOT Facilitative OR Evaluative
Binding
Determine
WHAT
Legal Merits Facts Evidence Remedies => Determination Final Outcome
Expert Determination
WHEN
Contract Clause
Request
Expert Determination
Areas
Valuation = Construction
Technical Nature = Accountant; Engineer; Medical
Expert Determination
WHERE
Professional Institute
Trade Body
ADR Provider
Direct
Expert
Qualities
Neutral Expertise Experience Available Cost
Expert Determination
Agreement Terms
Parties Expert Timetable Venue Procedure Issues Documents Information = Confidential Determination Rights to Challenge Costs / Signature
Expert Determination
Procedure
Consultation Submissions = Oral; Written Determination MAY Investigate Next Steps = ADR; Litigation
Expert Determination
Consultation
Issues
Documents
Information
Expert = Time Limits; Powers
Expert Determination
Determination Report
Determination = Law; Facts; Evidence; Remedies Decision = Merits; Final Outcome; Reasons
Expert Determination
Determination Instructions
Confidential
Summary OR Detail
Decision = Binding; Right of Appeal
Reasons = Basis
Expert Determination
Rights to Challenge
Grounds
Timescale
Expert Determination
Court Approach
Uphold Contract Clause
NO Other Recourse to Resolve
Expert Determination
Court Approach Requirements
Contract = Clear; Certain
Clause MUST = Issue; Jurisdiction; Binding
Expert = Instructions; Honest; Good Faith
Expert Determination
Compliance Failure
Breach of Contract
Court Direction = Compliance
Expert Determination
Court Powers
Stay Proceedings
Enforce = Contract; Judgement
Expert Determination
Stay Considerations
Overriding Objective
Contract
ADR Appropriate
Costs
Expert Determination
Grounds to Challenge
Legal Grounds
Contractual Grounds
Grounds to Challenge
Legal Grounds TYPES
Expert NO Jurisdiction
Expert Departure from Instructions
Fraud OR Collusion
Grounds to Challenge
Contractual Grounds MUST
Clause to Challenge
Reason = Expert Exclusive Remit to Determine
Grounds to Challenge
Contractual Grounds TYPES
Error of Law
Manifest Error
NO Reasons = Decision
Grounds to Challenge
Manifest Error
Obvious
Easily Demonstrable
Beyond Reasonable Contradiction
Grounds to Challenge
Challenge Procedure
Part 23 Procedure = Proceedings Issued
Part 8 Procedure = Proceedings NOT Issued
MUST Evidence of Grounds
