1. General Matters Flashcards
What does dealing with a case justly and at proportionate cost mean?
- Ensuring parties are on equal footings and can participate fully
- saving expense
- dealing with a case proportionately, i.e.:
a. to the money valuie
b. to the importance
c. to the complexity
d. to the financial position
- dealing with it expeditiously and fairly
- giving an appropriate share of the court’s resources
- enforcing compliance
What is the overriding objective?
Enabling the court to deal with cases justly and at proportionate cost
When does the overriding objective apply?
When the court exercises any power given to it by the Rules, or when it intereprets any rule.
Are the parties bound by the overriding objective?
Yes, they are required to help the court further the overriding objective.
What case management duty does the court have?
To further the overriding objective by actively managing the case?
What is active case management?
- Encouraging the parties to cooperate
- Identifying issues ASAP
- Prioritising the important issues
4.Deciding the order of disposing with issues - Encouraging ADR
- Encouraging settlement
- Fixing timetables
- Taking cost-benefit anaylsis of any step it proposes to take
- Dealing with as many aspects of the case on one occasion
- Dealing with the case without parties needing to attend
- Making use of technology
- Giving directions to ensure a quick and efficient trial
What is the incentive to cooperate with the CPR?
The fact that there may be consequences as to costs when unreasonable behaviour is caused.
What are some good examples of cooperation between parties?
Agreeing extension to period for filing defence, agreement to request stay for settlement, agreement on single joint expert, and the court can approve without a hearing proposals agreed by parties for management of multi-track proceedings.
Can the court order parties to use ADR?
Yes.
What discretion does a court have regarding claims brought in breach of an agreement to resolve a dispute by way of expert determination?
A power to stay
What can the court order in regards to early neutral evaluation?
Its use.
What are the advantages of ADR?
- The use of ADR will usually keep down costs, especially if used early and is non-adjudicative.
- It usually can occur very quickly
- There is a wider choice of arbitrator/mediator/independent evaluator
- There is a choice in the control of process to suit each parties needs
- There is flexibility in ADR’s process
- ADR is confidential
- A wider range of issues/outcomes may be considered
- ADR can assist in preserving a relationship between parties
- There is a problem-solving approach, rather than the entrenchment experienced in litigation
- Risk management, as there may be a prospect of success in litigation but to the extent that it is a toss-up
What criteria may you use for the selection of an ADR option?
- How important is it to minimise costs? (Court-based mediation may be free, negotiation is cheaper than mediation, although negotiation, mediation, early neutral evaluation, or expert determination can be cost-effective)
- How important is fast resolution? (if important, non-adjudicative options may be better).
- How much control does the party want? (ADR is based on agreement so there is substantial control in non-adjudicative options)
- What are the main objectives of the party? (if it’s a sum of compensation, then any ADR may be appropriate. Cases involving non-pecuniary remedies may be better for non-adjudicative options)
- Is a future relationship important? (If so, then nonadjudicative may be better).
- Is the view of an expert important to key issues? (if s, then neutral evaluation or expert determination should be considered).
- Would neutral assistance be valuable? (parties in an adversarial process may find it difficult to admit defeat, even where better for them, so a mediator may help to discuss the pros and cons of your case more objectively).
When may ADR not be appropriate?
- If a party requires a legal precedent, such as on an interpretation of a clause in a standard contract
- If a court order is important in the case (i.e. declaration of legal rights or technical order such as amendment of register of members of a company).
- Whether it is important to make an interim order
- Where evidential rules are important (such as where one party is not forthcoming with relevant evidence)
- The strength of the case (if a party believes that his case is strong and, as such, need not go to court (this belief must be objective), he may wish to go to court. However, the costs implications may be high and the strength of the case is only one factor to consider when refusing ADR. It may be appropriate in a very strong case to apply for summary judgment)
- If a case is particular complex (though this may lead to disproportionate costs, and so practical outcomes may be better, as achieved through ADR. Plus ADR could be a good way to control or better serve each party’s need in the case)
- High levels of animosity (although a skilled mediator or robust neutral evaluation may assist. Adr may be appropriate even where trust has broken down. Furthermore, court should not be used as a weapon of senseless war)
- Power imbalance (a non-adjudicative ADR process may not be appropriate where one party has more resources than the other, or may have improper control (i.e. through DV).
- Where the allegations are quasi-criminal
- Having their day in court (though this should be balanced against costs and success chances)
- Where enforcement may be an issue (though if enforcement might be an issue, ADR may be best used after issue of proceedings so the outcome can be recorded in a consent order that may be enforced more easily)
What are the roles and responsibilites of key players in relation to ADR
The roles and responsibilities of key players are:
* To assist the court in furthering the overriding objective, which includes:
* A positive duty to assist the court in saving expense
* A duty to ensure that a case is dealt with expeditiously and fairly and in a proportionate way
* This applies to both interactions with the court but also between parties and the principals and their lawyers.
* Estimated costs for ADR should cover settlement negotiations, including Pt 36 and other offers, advising the client, as well as drafting a settlement agreement/Tomlin order.
What are the main elements of the role of a lawyer in relation to ADR?
- Ensuring the client is aware of ADR alternaltives
- Providing objective information on relevant ADR options, including pros/cons, or giving advice on where to get further information
- Advising on pre-action obligations relating to consideration of ADR
- Advising the client on obligations relating to overriding objective on ADR
- Ensuring the client is aware of the penalties of unreasonable refusal to use ADR
- Giving appropriate advice on funding and costs re ADR, though this is not a barristers’ duty unless instructed so
- If adr is selected, getting instructions on the form of ADR, objectives to be achieved ect
- If adr is not selected, ensuring objective reasons are identifies and sufficient evidence of those reasons retains
- If appropriate, assisting the selection of a third party to conduct ADR
- Advising on strengths/weaknesses of a case as part of assessing a case of use of non-adjudicative ADR
- Considering and advising on offers in relation to non-adjudicative ADR
- Advising on and drafting terms of settlement
What is the relevance of the Churchill and Halsey cases?
The court can direct the parties to consider ADR at a case management hearing (order approved in Halsey) and, as per Churchill, can now order parties to engage in ADR, or grant a stay.
The power to order a stay/direct adr can be exercised lawfully subject to these provisos:
The order did not impair the very essence of the claimants right to proceed to a judicial hearing and was proportionate to the legitimate aim of resolving it fairly, quickly, and at reasonable cost.
What must happen before a case is allocated to a track?
Before the case is allocated to a track, the court will required the parties to file a directions questionnaire in form n181 (fast track and multi-track) or n180 (small claims track cases). The directions questionnaires require the representatives to confirm hey have explained to their client the need to try and settle the claim, the options available, and the possibility of a costs sanction.
During filling out of the form, each party can inform the court whether they would like a stay or explain why it’s not possible to do so right now. Parties are also asked whether they have complied with the full pre-action protocol and, if not, why not.
Does the court have to accept the reasons given by the parties as to why they haven’t engaged in ADR/complied with the PAP?
The court does not have to accept the reasons by any of the parties for refusing to settle the action or considering adr. If the court considers those reasons to be weak and inadequate, it will direct the parties to attend a case management conference, to consider whether adr should be attempted. The court can direct the parties to attempt to settle by adr even if one party objects.