1. General Matters Flashcards
What is the overriding objective?
that the court should deal with cases justly and at proportionate cost
What is meant by dealing with cases justly and at a proportionate cost?
(1) ensuring that the parties are on equal footing.
(2) saving expense
(3) dealing with the case proportionately (considering the amount of money involve, the importance of the case, complexity of the issues)
(4) ensuring the case is dealt with expeditiously and fairly.
(5) allocating an appropriate share of the court’s resources.
(6) enforcing compliance with rules, PDs and orders.
How can the court apply the overriding objective?
the court can give effect to the overriding objective when it exercises any power given to in within the CPR; or interprets rules.
What are the parties’ duties when it comes to the overriding objective?
the parties have a duty to further the overriding objective
What does the duty of active case management involve?
(1) encouraging parties to cooperate with each other.
(2) identifying the relevant issues at an early stage.
(3) deciding the order in which to resolve issues.
(4) encouraging parties to use ADR
(5) helping the parties to settle part or all of the case
(6) dealing with where possible, multiple aspects of the case on the same occasion.
How can the court encourage parties to cooperate?
the court can encourage parties to cooperate with one another by imposing cost sanctions. These types of costs orders tend to be for costs on the indemnity basis.
How can the court help parties to settle the case?
the court should encourage consensual settlement. They can do this by ordering ENE for example
Can parties be compelled to use ADR?
parties cannot be compelled to use ADR per se, but they can be encouraged through the use of cost sanctions for example.
What motivations are there for using ADR?
(1) cheaper
(2) faster
(3) choice of forum
(4) parties maintain control
(5) flexible
(6) confidential
(7) wider range of issues can be considered
(8) protects relationships
(9) more constructive for solving problems.
(10) risk can be more cost effectively controlled.
If the need to keep costs low is a relevant consideration, which forms of ADR are most appropriate?
If there is a need to keep costs low, court-based mediation may be free.
Negotiation is often cheaper than mediation.
Negotiation, mediation, ENE or expert determination can all be good options.
If fast resolution is important, which forms of ADR are most appropriate?
If a fast resolution is important then non-adjudicative options may be the most effective.
How does the extent of control that the parties want affect the choice of ADR?
Parties have substantial control because ADR is based on agreement.
But parties maintain the most control in non-adjudicative ADR.
How does the fact that the parties have a non-pecuniary objective affect the choice of ADR?
if the main objective is to decide on an appropriate sum of compensation, any ADR process is appropriate.
Non-pecuniary objectives may be best achieved in non-adjudicative ADR.
Which forms of ADR are most appropriate if a future relationship important?
Non-adjudicative ADR is most likely to produce a successful outcome
Which forms of ADR are most appropriate if the view of an expert is important to key issues?
Early neutral evaluation or expert determination should be considered.
Which form of ADR is most appropriate where neutral assistance would be valuable?
a mediator could bring a lot of value, with an independent perspective that can cut through the positions taken to identify a middle ground.
When might ADR not be appropriate?
(1) where there is a need for a precedent
(2) where the outcome can only be achieved through a court order
(3) if an interim order is necessary
(4) for the evidential rules
(5) the strength of a case
(6) complexity of the case
(7) level of animosity between parties
(8) imbalance in power
(9) quasi-criminal allegations
What are the duties of lawyers and parties under the CPR?
Lawyers and parties are required to assist the court in furthering the overriding objective. There is a positive duty to assist the court in saving expense, ensuring that a case is dealt with expeditiously.
The point is not only to comply with obligations, but also to take appropriate action where an opponent does not.
What is the role of a lawyer when advising on ADR?
The main elements are:
- ensuring that a client is aware of ADR alternatives to litigation
- providing objective information on relevant ADR options.
- advising the client on their obligations under the overriding objective in relation to ADR.
- If ADR is selected, getting clear instructions on the form of ADR to be used, objectives to be achieved.
- assisting in the selection of an independent third party.
Can a lawyer make an agreement in settlement for a client?
Only if that lawyer has got the authority to settle, made in clear instructions set by the client.
What would happen if a lawyer reaches an agreement without authority to settle?
the client will be bound by the agreement, even if the client has not given consent. The client may make a negligence claim against the lawyer.
How can the judge encourage ADR?
Judges can question parties as to the steps taken to settle and encourage them to use ADR.
What can the court do if a party does not engage with ADR where they could reasonably have been expected to do so?
impose cost sanctions
Can the court compel the parties to use ADR?
The court can encourage parties to use ADR and make orders facilitating them to use ADR, but they cannot compel parties to use ADR where they do not wish to do so.
