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ADR > 05 - Ethics, Record and Enforcement > Flashcards

05 - Ethics, Record and Enforcement Flashcards

1
Q

Ethics Advocate

Standards

A 
(CD7) Competence
(CD3) Honest AND Integrity
(CD4) Independent
Client Instructions
(CD2) Client Best Interest
(CD1) Assist the Court
(CD6) Confidential
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2
Q

Ethics Advocate

(CD7) Competence

A

SKE

Standard of Work

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3
Q

Ethics Advocate

(CD3) Honest AND Integrity

A

(CD5) Trust AND Confidence
ADR MUST Genuine
NOT Abuse Position

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4
Q

Ethics Advocate

(CD4) Independent

A

Neutral
Conflict of Interest
Disclosure

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5
Q

Ethics Advocate

Client Instructions

A 
Within
Authority
Lay Client Objectives
Allegations = Supported; Arguable
Client Decision
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6
Q

Ethics Advocate

WHAT Authority

A 
Disclosure
Figures
Negotiate
Settlement
Avoid = Ostensible
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7
Q

Ethics Advocate

(CD2) Client Best Interest

A

Informed

Consider

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8
Q

Ethics Client

WHAT Informed Decision

A

ADR Options
Procedure
Settlement
Sanctions

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9
Q

Ethics Client

WHAT Consider

A

Legal Merits
Prospect of Success
Costs (ARD AND Litigation)

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10
Q

Ethics Advocate

(CD1) Assist the Court

A

Overriding Objective

NOT Mislead = Court; Other Party

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11
Q

Ethics Advocate

Confidential - Reason

A

Confidence = ADR; Proceedings

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12
Q

Ethics Advocate

Confidential - Method

A

ADR Contract
Legal Privilege
Without Prejudice

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13
Q

Ethics Advocate

Confidential - Exceptions

A

Permission

Legal Requirement

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14
Q

Ethics Advocate

Fees

A

YES Expenses

NO Referral Fees

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15
Q

Ethics Advocate

WHAT Expenses

A

ADR Membership IF
Reasonable
Genuine

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16
Q

Ethics Advocate

Failure = Consequences

A

Discontinue ADR
Wasted Costs
Professional Negligence
Disciplinary Proceedings

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17
Q

Ethics Mediator

Reasons

A

Position of Power
Influence = Settlement
Confidential

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18
Q

Ethics Mediator

Code of Conduct TYPES

A

ADR Provider
Civil Mediation Counsel = CMC
European
Professional = BSB OR SRA

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19
Q

Record Settlement

MUST Ensure

A 
Clarity
ALL Issues
Terms
Costs
Client
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20
Q

Record Settlement

Clarity

A

Clear
Certain
Comprehensive
Failure = ‘Void for Uncertainty’

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21
Q

Record Settlement

Terms

A

Requirements
Mechanics
Confidential

22
Q

Record Settlement

Terms Requirements

A 
Payment
Performance
Period of Time
Costs
Interest
23
Q

Record Settlement

Terms Mechanics

A 
Agreement = Contract
Dispute = Arbitration
Value = Expert Determination
Enforcement = Court
24
Q

Record Settlement

Costs

A

Agreement

NO Agreement = Follow Event; Part 8 Procedure (Court Assessment)

25
Q

Record Settlement

Client

A

Understands
Consent = Conditions; Award
Approval
Capacity = Litigation Friend WITH Court Approval

26
Q

Record Settlement

Court Orders TYPES

A 
Stay
Discontinue
Dismissal
Final Judgement
Consent
Tomlin
Costs
27
Q

Record Settlement

WHAT Stay

A

NO Further Proceedings

NO Final Judgement

28
Q

Record Settlement

WHAT Discontinue

A

Request = Claimant
Court Decision = No
PAY Costs = Claimant

29
Q

Record Settlement

WHAT Dismissal

A

Request = Claimant
Court Decision = NOT Proceed
PAY Costs = MAY Share

30
Q

Enforcement

HOW Mediation / Negotiation

A

Sue on Contract

31
Q

Enforcement

STEPS Mediation / Negotiation

A
  1. Proceedings
  2. Defence Statement = Y/N
  3. Enforcement
32
Q

Enforcement

Defence Statement = YES

A

Summary Judgement

WHEN = NO Real Prospect of Success

33
Q

Enforcement

Defence Statement = NO

A

Judgement in Default

WHEN = NO Response PoC; 14 days > Service

34
Q

Enforcement

WHAT Compromise Agreement

A 
Merge = Original AND ADR Settlement
Contract = NOT Litigate
35
Q

Compromise Agreement

Consideration

A

Settlement

Right to Litigation

36
Q

Compromise Agreement

Exceptions

A

Agreement Void = Uncertainty
Breach = Contract; Terms
Non Performance

37
Q

Enforcement

Contract Defence

A 
Performed
NOT Good Faith
NO Authority
Capacity
Misrepresentation
Fraud
Repudiation
38
Q

Enforcement

STEPS Arbitration

A
  1. Permission to Enforce
  2. Leave Given
    a. Court Judgement
    b. Court Order
39
Q

Arbitration

WHAT Arbitration Act 1996 (s. 66)

A

High Court Permission

Effect = HC Judgement OR Order

40
Q

Arbitration

WHAT New York Convention 1958

A

High Court Permission

Effect = HC Judgement OR Order

41
Q

New York Convention 1958

Enforcement Evidence

A

Arbitration Agreement
Original Award
Translation IF Foreign

42
Q

New York Convention 1958

Exceptions

A 
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
43
Q

Enforcement

NO Proceedings TYPES

A

Sue on Contract

CPR Part 8

44
Q

Enforcement

WHAT CPR Part 8

A

Alternative Procedure for Claims

45
Q

Enforcement

WHEN CPR Part 8

A

Decision = NO Substantial Dispute of Fact
Declaration
Enforce Right

46
Q

Enforcement

STEPS Tomlin Order

A
  1. Claim Restored
    a. Liberty to Apply
    b. Remove Stay Order
    c. Compliance Order
  2. Failure = Contempt of Court
  3. Enforcement Order
47
Q

Enforcement

STEPS Court Order

A
  1. Court Judgement

2. Court Order

48
Q

Enforcement

Court Judgement WHAT

A

Immediate Payment

Instalments AND Remove Stay

49
Q

Enforcement

Court Orders TYPES

A

Charging Order
Debt Order
Attachment of Earnings
Receivership Order

50
Q

Enforcement

Insolvency WHEN

A

Unable to Pay Debts as Due

51
Q

Enforcement

Insolvency TYPES

A 
Bankruptcy = Individual
Winding-up = Company

ADR (7 decks)

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