1. Key pre-action steps

Question 1

What are 2 types of alternative dispute resolution?

Answer 1

Mediation
Abritration

Question 2

What is the obligation on parties to undertake ADR in line with the overriding objective of the Civil Procedure Rules?

Answer 2

• Must take reasonable and proportionate steps to resolve the matter
• Costs should be proportionate
• Aim to avoid need for legal proceedings

Failure to start proceedings without attempting ADR would lead to party suffering adverse cost consequences - unless has good reason to not follow procedure in Practice Direction Pre-Action Conduct and Protocols

Question 3

What is the process of mediation?

Answer 3

Parties agree an independent third person / body who will be sent written statements and then discuss the case with them on a without prejudice basis

Question 4

Is there any formal disclosure obligations for mediation?

Answer 4

No

Question 5

Is the outcome from mediation binding?

Answer 5

No, not automatically binding unless a written contract is established following the decision

Question 6

What are the advantages of mediation?

Answer 6

• Cost and speed - cheaper than arbitration and litigation (however remember do still need to pay the third party for their time)
• Flexibility - can choose procedure
• Privacy
• Preserving a business relationship
• Commercial reality - may lead to more workable solution
• Ability to withdraw

Question 7

What are the disadvantages of mediation?

Answer 7

May not be appropriate - e.g. need ruling on point of law, or injunction required

Matters involving fraud or other commercially disreputable conduct also generally unsuitable for mediation

No formal disclosure

No public vindication for reputational reasons

Either party could withdraw whenever

No automatic enforcement - however do enter into contract

Question 8

Once a party has agreed to arbitration, can they still settle through litigation?

Answer 8

No

Question 9

In what instances would arbitration arise?

Answer 9

1. Contractually bound to it
2. Agree to it once dispute arises

Question 10

Is a decision from arbitration binding?

Answer 10

Yes - produces a final binding award

Question 11

What are the advantages of arbitration?

Answer 11

• Quicker & cheaper than court
• Less formal procedure
• Ability to reach more practical solutions than court
• Binding decision - enforcement available through courts

Question 12

What are the main disadvantages of arbitration?

Answer 12

• Dispute may not receive depth of investigation it would receive in courts
• Certain remedies such as injunctions not available

Question 13

Is there any requirement for parties to consider ADR?

Answer 13

Yes - if they don’t do so then judge will consider this disfavourably and could impose adverse cost consequences due to not following Pre-Action Conduct and Protocols (unless for good reason)

Question 14

What is the impact of the bringing of an action (i.e. legal proceedings) on the running of time of the limitation period for bringing a claim?

Answer 14

Stops the running of time for purposes of that action only - therefore should issue proceedings but then apply to court for stay while parties comply with requirements for considering ADR

Question 15

Is a party miss the limitation period, can they still succeed in bringing litigation?

Answer 15

An extension to the limitation period may be available in exceptional circumstances

Question 16

What is the limitation period for claims founded on contract or tort?

Answer 16

6 years from cause of action

NOTE that is the claim arises under a contract then must check the limitation period within the contract as this could have been amended

Question 17

In a contractual dispute, what constitutes the cause of action?

Answer 17

When the breach of contract occurs

Question 18

In a dispute based on tort, e.g. negligence, what constitutes the cause of action?

Answer 18

When the tort is committed

Question 19

For a personal injury claim, what is the limitation period and when does it run from?

Answer 19

3 years from date of action OR from date of knowledge of person injured OR date of knowledge of who to bring claim against

Question 20

If the person injured in a PI claim is under 18, when does the 3 year limitation period run for?

Answer 20

3 years from their 18th birthday

Question 21

For a dispute regarding latent damage, what is the limitation period?

Answer 21

6 years from cause of action OR 3 years from date of knowledge (whichever is later) HOWEVER no later than 15 years after date of negligent act or omission

Question 22

What are the two types of claim?

Answer 22

Specified claims - for fixed amount of money

Unspecified claims - court will conduct investigation to determine amount of money payable

Question 23

What is a case analysis?

Answer 23

Solicitor’s initial review of the case in order to establish validity of claim and give preliminary advice

Solicitor has obligation to continually review progress of the case

Question 24

What are the common civil causes of action?

Answer 24

• Breach of express / implied contractual terms
• Negligence - road traffic collision; medical negligence
• Negligent mis-statement - e.g. financial adviser
• Nuisance - excessive noise from a neighbour; tree roots causing property damaged; water flooding from another’s property
• Misrepresentation - e.g. car salesman

Question 25

Why is it better to bring a claim for a breach of contract than tort?

Answer 25

Easier to prove breach with existence of a contract

Question 26

What are pre-action protocols?

Answer 26

Pre-action rules which parties must comply with

Question 27

What is the general document governing pre-action procedure?

Answer 27

Practice Direction on Pre-Action Conduct and Protocols

However, there is also specific pre-action protocol for specific claims

Question 28

What are the key principles outlined in the pre-action protocol?

Answer 28

Litigation should be a last resort

Parties should exchange sufficient information in order to understand each other’s position / consider ADR etc

Claimant should write to defendant with details of claim, and defendant should respond within reasonable time

Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual and/ or expert issues

Where a dispute has not been resolved after the parties have followed the Practice Direction, they should review positions to see if proceedings can be avoided

Question 29

If proceeding to litigation, and parties have failed to comply with the Practice Direction, what may the court do?

Answer 29

1. Order one party pays costs of part of other party’s costs of the proceedings
2. Order payment of costs on an indemnity basis
3. Deprive a party of interest on the amount recovered for a specified period