ADR

Question 1

Halsey v Milton Keynes

Answer 1

In deciding whether a party acted unreasonably in refusing ADR the court considers:

1. Nature of dispute
2. Merits of case
3. Extent to which
   other settlement methods other than the refused have been attempted.
4. would costs of ADR have been disproportionately high
5. whether any delay in setting up and attending the ADR would have been prejudicial particularly if its close to trial.
6. Weather ADR had reasonable prospects of success.
7. Other factors- contractual clause to consider ADR

Question 2

What if parties fail to suggest ADR

Answer 2

• The court will not usually refuse to award costs to a successful party only because it did not suggest ADR.
• Where such a failure amounts to a breach of court order or of one of the pre-action protocols / PD on Pre-action Conduct, then the situation is different.
• On the other hand, silence in the face of an offer to engage in ADR is likely to be considered unreasonable and to be sanctioned in costs (unless the parties are already engaged in a form of ADR).

Question 3

what are the two sorts of consent orders?

Answer 3

1. Based on contract
   - Can be a standard consent order to a Tomlin order
2. Not based on contract
   - Not contract but agreement on terms
   - Can be altered or varied by the court

Question 4

What are the two parts of a Tomlin order? when is normally used

Answer 4

1. public
   contains actions taken by the court and enforceable by the court
2. confidential

when parties want confidentiality and when the terms go beyond those that a court would usually issue.

Question 5

Do consent and tomlin orders need courts permission?

Answer 5

yes
after agreeing on terms, parties must apply to the court to have the order made

• If the application for the order is made during a period when the claim has been stayed, the application for the order is treated as an application to have the stay lifted also.

Question 6

How would parties record a settlement before proceedings were issued

Answer 6

no need for a Consent Order or a Tomlin Order because there are no proceedings to dispose of
- INSTEAD: parties will record their agreement in a settlement agreement (a contract)