1-2. Alternative Dispute Resolution

Question 1

Characteristics of Mediation

Answer 1

1. Intermediate third party acts as mediator
2. Confidential
3. Cheaper and quicker than arbitration
4. Flexible: no legal requirements
5. Preserving a business relationship better here

Question 2

Statutory Provision Governing ADR

Answer 2

Governed by Civil Procedure Rule 1998:

• Set out how a case is litigated
• failure to respond to reasonable proposal to attempt settlement by ADR may impact orders for costs

Question 3

Characteristics of Arbitration

Answer 3

• Voluntary: in the sense that the parties either voluntarily entered into arbitration agreement or agreed to decide using arbitration once a dispute arose
  
  • If arbitration agreement: once one party commences court proceedings others should acknowledge service and if they wish to enforce the agreement should apply to court to stay (suspend) proceedings

Question 4

Characteristics of Litigation

Answer 4

• Not voluntary (unless claimant chooses to issue a claim in the first case)
• Neither party can withdraw without paying the opponents cost
• If settlement agreement not possible (or ADR) court will impose its own solution

Question 5

When should ADR be used?

Answer 5

Should be used UNLESS
- Inappropriate (ie. because injunction is required)
- other party is unlikely to co-operate in the process or
- other party cannot be trusted to comply with an award

Question 6

If a party proposes a form of ADR and another party refuses to engage - what should they do to attempt to minimise costs sanctions in litigation

Answer 6

any party not engaging in any such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not be shown to the trial judge until questions of costs arise.

Question 7

Does the court have the power to force parties to participate in ADR

Answer 7

the court can now lawfully stay proceedings for, or order, the parties to engage in a non-court based dispute resolution process.
- IF this is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly, and at reasonable cost

Question 8

Process of Mediation

Answer 8

1. Parties will agree to ITP or party to act as a ‘go-between’ known as a mediator
2. Mediator will be sent written statements from both parties
3. Mediator will discuss the case with both parties confidentially
   
   1. May do so in the same building for timing sake, but can also be done via correspondence, telephone conversations or online

Question 9

Cost of Mediation

Answer 9

cheaper than arbitration and litigation (quicker) but parties must pay ITP

Question 10

Flexibility in Mediation

Answer 10

No legal requirements allow parties to choose procedure they want to follow

Question 11

Privacy in Mediation

Answer 11

Takes place in private (salient for reputation issues, or if there are potential further claims)
- BUT Client may require public vindication

Question 12

Preserving a business relationship: Mediation

Answer 12

Good because it is non-confrontational

Question 13

Is mediation a good approach when looking to secure a solution which takes into account the commercial reality of the parties involved?

Answer 13

ITP can held parties arrive at realistic and workable settlement terms (including arrangements a court could not order such as discounts on future orders)

Question 14

Mediation: Disclosure

Answer 14

No formal disclosure procedures means parties may resolve disputes without knowing all the facts

Question 15

Ability to withdraw from Mediation

Answer 15

Parties may withdraw before solution has been agreed (despite objections from other party) which would require litigation

Question 16

Is the outcome of mediation binding?

Answer 16

Not automatically - but agreement can be recorded in contract (giving remedies for breach etc.)

Question 17

Arbitration: procedure

Answer 17

(1) dispute referred to independent arbitrator (this person may be specified in contract) or parties choose their own

(2) Third party’s decision is binding on both parties

Question 18

Advantages of Arbitration

Answer 18

1. Likely to be quicker than going to court and cheaper
2. Less formality in procedure
3. Decision made by impartial third party with expertise
4. Takes place in private
5. Solutions more practical than those which would be ordered by a court
6. Decision binding on the parties

Question 19

Disadvantages of Arbitration

Answer 19

1. dispute may not receive the same depth of investigation (depending on which procedures are used)
2. certain remedies (like injunctions) are not available
3. Not cheap: need to pay arbitration expert / panel and parties may wish to be represented by lawyers
4. Limited right of appeal (decisions very binding)

Question 20

Once a decision has been reached in arbitration - can this be enforced / how?

Answer 20

Once a decision has been reached, the winning party to an arbitration can apply to the High Court under s 66 of the Arbitration Act 1996 for permission to enforce the arbitration award as if it were a court judgment.

Question 21

Court Personnel involved in Civil Litigation

Answer 21

1. Judges
2. Court Manager
3. Ushers
4. Enforcement officers

Question 22

What kinds of trials can district judges hear?

Answer 22

Those where amount involved does not exceed 25 000

Question 23

Effect of a party missing the time limits in the Limitation Act 1980

Answer 23

if a party has missed limitation period, defendant has a technical defence to the claim (claim is statute barred, so claimant cannot succeed with the litigation)

Question 24

Limitation Periods for Contract / Tort Claims

Answer 24

the claimant has six years from the date of the cause of action to commence their proceedings
EXCEPTION: if the contract specifies a shorter period

Question 25

Limitation Period for Personal Injury

Answer 25

the limitation period is three years, running from the date of the cause of action or the date of knowledge of the person injured (ie. identity of person who did the damage), whichever is the later
- Exception: the time limit does not start to run until the claimants 18th Birthday

Question 26

Limitation Period for Latent Damage

Answer 26

If damage is hidden when the cause of action accrued, the limitation period expires either

i. 6 years from the date of the cause of action
ii. 3 years from the date of knowledge of the damage (whichever is later) but
iii. no later than 15 years from the date of the negligent act or omission

Question 27

Can limitation periods be extended?

Answer 27

In exceptional circumstances

Question 28

If a client has concerns about a potential defendant’s ability to pay: how can they look into this?

Answer 28

1. If a company, company’s house search
2. bankruptcy search of an individual
3. instruct an enquiry agent
   4.Google

Question 29

Specified Claims

Answer 29

specified if it is for a fixed amount of money (ie. debt owed) that is already known
- examples include price of goods sold and commission due under express terms

Question 30

Unspecified Claims

Answer 30

• when court has to conduct investigation to determine amount of money payable, claim is unspecified
• usually damages

Question 31

Purposes of Damages in Nuisance Torts

Answer 31

To put the claimant in the position they would have been in had the nuisance not occurred

Question 32

Purpose of damages in Misrepresentation Claims

Answer 32

To put claimant in the position they were in BEFORE contract was entered intoP

Question 33

Purpose of damages in a breach of contract claim

Answer 33

Put claimant in position they would have been in had the contract been properly performed

Question 34

Purpose of damages in the Tort of Negligence

Answer 34

Put claimant in the position they would have been in had the negligent action not occurred

Question 35

Which Protocol covers Debt Claims

Answer 35

Pre-Action Protocol for Debt Claims (PPDC)

Question 36

Who does the PPDC apply to

Answer 36

applies to any business including sole traders and public bodies (the creditor) that brings a claim against a debtor who is either an individual or a sole trader (debtor)
- does not apply business to business debts (unless debtor = sole trader)

Question 37

Requirements imposed by the PPDC

Answer 37

• must give full information on debt owed (up to date statement of account with details of interest and charges) and how debt can be paid
• Standard Reply Form, Information Sheet and Financial Statement forms that are annexed
  to the protocol should also be included
• Debtors given 30 days to respond (court proceedings cannot be issued before deadline) and creditor should allow extra time for debtor to seek legal advice

Question 38

Steps that should be taken in a professional negligence claim

Answer 38

1. a party is encouraged to notify the professional in writing of any intended claim (Preliminary Notice) containing info about claimant, brief outline of claimant’s grievance against professional and indication about financial value of the claim
2. Professional should be instructed to inform their insurers immediately and to acknowledge the notice in writing within 21 days of receipt
   a. setting out whether professional admits allegations and if not, why, with documents
3. Letter of settlement may be sent by professional at this time
4. If letter of response denies the claim and no letter of settlement, claimant can start proceedings
5. If (4) does not apply, professional and claimant should start negotiations (aim of resolving claim within 6 months of letter of acknowledgement)
   a. If no resolution, must be final ‘Stocktake’ in which parties review their positions / narrow down issues before court action taken
   b. Parties must consider ADR

Question 39

If a professional receives a letter from a claimant notifying them of a professional negligence claim: what should their first steps be

Answer 39

Professional should be instructed to inform their insurers immediately and to acknowledge the notice in writing within 21 days of receipt
- setting out whether professional admits allegations and if not, why, with documents
- can also send a letter of settlement at this time

Question 40

Professional negligence claim: Professional sends response to claim letter fully denying the claim with no settlement letter - what can the claimant do?

Answer 40

Start proceedings

Question 41

Professional negligence claim: Professional sends response to claim letter denying the claim with a settlement letter - what can the claimant do?

Answer 41

Should start negotiations (and aim to resolve within 6 months) and consider ADR
- Must have a ‘stocktake’ where they narrow down issues before going to court if nothing can be resolved

Question 42

If there is no clause in the contract nominating a particular jurisdiction as the setting for a claim:

Answer 42

Parties no longer have a choice if they cannot agree - establishing applicable law becomes a preliminary matter

Question 43

When is evidence of what happened during mediation admissible?

Answer 43

where both parties agree to waive confidentiality. So, if both parties agree to give that evidence, the trial judge should hear it.

Question 44

Can a party to a mediation compel the mediator to give evidence in subsequent proceedings?

Answer 44

By way of information, a party to a mediation cannot compel the mediator to give evidence in subsequent proceedings. Moreover, the court has no power to order a party in these circumstances to pay compensation to the mediator, nor require one party to pay the full costs of the mediation

Question 45

If an agreement is reached in mediation which is not honoured by one of the parties, are there any avenues for legal recourse?

Answer 45

The firm may sue the company for breach of contract, as agreeing to terms reached in mediation amounts to formation of a contract. The firm may well be able to obtain summary judgment and proceed to enforcement of the judgment.

Question 46

Can a court stay proceedings and order parties to participate in ADR?

Answer 46

By way of information, Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416 held that a court can lawfully stay proceedings for, or order, the parties to engage in a non-court-based dispute resolution process provided that does not impair the very essence of the claimant’s right to proceed to a judicial hearing, and it is proportionate to achieving the legitimate aim of settling the dispute fairly, quickly and at reasonable cost.