05 - Ethics, Record and Enforcement Flashcards
Ethics Advocate
Standards
(CD7) Competence (CD3) Honest AND Integrity (CD4) Independent Client Instructions (CD2) Client Best Interest (CD1) Assist the Court (CD6) Confidential
Ethics Advocate
(CD7) Competence
SKE
Standard of Work
Ethics Advocate
(CD3) Honest AND Integrity
(CD5) Trust AND Confidence
ADR MUST Genuine
NOT Abuse Position
Ethics Advocate
(CD4) Independent
Neutral
Conflict of Interest
Disclosure
Ethics Advocate
Client Instructions
Within Authority Lay Client Objectives Allegations = Supported; Arguable Client Decision
Ethics Advocate
WHAT Authority
Disclosure Figures Negotiate Settlement Avoid = Ostensible
Ethics Advocate
(CD2) Client Best Interest
Informed
Consider
Ethics Client
WHAT Informed Decision
ADR Options
Procedure
Settlement
Sanctions
Ethics Client
WHAT Consider
Legal Merits
Prospect of Success
Costs (ARD AND Litigation)
Ethics Advocate
(CD1) Assist the Court
Overriding Objective
NOT Mislead = Court; Other Party
Ethics Advocate
Confidential - Reason
Confidence = ADR; Proceedings
Ethics Advocate
Confidential - Method
ADR Contract
Legal Privilege
Without Prejudice
Ethics Advocate
Confidential - Exceptions
Permission
Legal Requirement
Ethics Advocate
Fees
YES Expenses
NO Referral Fees
Ethics Advocate
WHAT Expenses
ADR Membership IF
Reasonable
Genuine
Ethics Advocate
Failure = Consequences
Discontinue ADR
Wasted Costs
Professional Negligence
Disciplinary Proceedings
Ethics Mediator
Reasons
Position of Power
Influence = Settlement
Confidential
Ethics Mediator
Code of Conduct TYPES
ADR Provider
Civil Mediation Counsel = CMC
European
Professional = BSB OR SRA
Record Settlement
MUST Ensure
Clarity ALL Issues Terms Costs Client
Record Settlement
Clarity
Clear
Certain
Comprehensive
Failure = ‘Void for Uncertainty’
Record Settlement
Terms
Requirements
Mechanics
Confidential
Record Settlement
Terms Requirements
Payment Performance Period of Time Costs Interest
Record Settlement
Terms Mechanics
Agreement = Contract Dispute = Arbitration Value = Expert Determination Enforcement = Court
Record Settlement
Costs
Agreement
NO Agreement = Follow Event; Part 8 Procedure (Court Assessment)
Record Settlement
Client
Understands
Consent = Conditions; Award
Approval
Capacity = Litigation Friend WITH Court Approval
Record Settlement
Court Orders TYPES
Stay Discontinue Dismissal Final Judgement Consent Tomlin Costs
Record Settlement
WHAT Stay
NO Further Proceedings
NO Final Judgement
Record Settlement
WHAT Discontinue
Request = Claimant
Court Decision = No
PAY Costs = Claimant
Record Settlement
WHAT Dismissal
Request = Claimant
Court Decision = NOT Proceed
PAY Costs = MAY Share
Enforcement
HOW Mediation / Negotiation
Sue on Contract
Enforcement
STEPS Mediation / Negotiation
- Proceedings
- Defence Statement = Y/N
- Enforcement
Enforcement
Defence Statement = YES
Summary Judgement
WHEN = NO Real Prospect of Success
Enforcement
Defence Statement = NO
Judgement in Default
WHEN = NO Response PoC; 14 days > Service
Enforcement
WHAT Compromise Agreement
Merge = Original AND ADR Settlement Contract = NOT Litigate
Compromise Agreement
Consideration
Settlement
Right to Litigation
Compromise Agreement
Exceptions
Agreement Void = Uncertainty
Breach = Contract; Terms
Non Performance
Enforcement
Contract Defence
Performed NOT Good Faith NO Authority Capacity Misrepresentation Fraud Repudiation
Enforcement
STEPS Arbitration
- Permission to Enforce
- Leave Given
a. Court Judgement
b. Court Order
Arbitration
WHAT Arbitration Act 1996 (s. 66)
High Court Permission
Effect = HC Judgement OR Order
Arbitration
WHAT New York Convention 1958
High Court Permission
Effect = HC Judgement OR Order
New York Convention 1958
Enforcement Evidence
Arbitration Agreement
Original Award
Translation IF Foreign
New York Convention 1958
Exceptions
NO Capacity NO Agreement Agreement Void Arbitration < > Agreement = NO Jurisdiction Arbitration Unfair = NO Notice; Case NOT Presented Tribunal = Wrong Number; Impartial Award = NON Binding; Set Aside Contrary to Public Policy
Enforcement
NO Proceedings TYPES
Sue on Contract
CPR Part 8
Enforcement
WHAT CPR Part 8
Alternative Procedure for Claims
Enforcement
WHEN CPR Part 8
Decision = NO Substantial Dispute of Fact
Declaration
Enforce Right
Enforcement
STEPS Tomlin Order
- Claim Restored
a. Liberty to Apply
b. Remove Stay Order
c. Compliance Order - Failure = Contempt of Court
- Enforcement Order
Enforcement
STEPS Court Order
- Court Judgement
2. Court Order
Enforcement
Court Judgement WHAT
Immediate Payment
Instalments AND Remove Stay
Enforcement
Court Orders TYPES
Charging Order
Debt Order
Attachment of Earnings
Receivership Order
Enforcement
Insolvency WHEN
Unable to Pay Debts as Due
Enforcement
Insolvency TYPES
Bankruptcy = Individual Winding-up = Company
