ADR Flashcards
Which of the following statements numbered (i) to (iv) about the use of ADR is/are CORRECT?
(i) There is an expectation that ADR will be considered at the pre-action stage. This is reinforced by specific provisions directing the parties to consider the use of ADR in the Pre-action Protocols and Practice Direction Pre-Action Conduct and Protocols.
(ii) Model standard directions apply to multi-track cases, with a model form of ADR order which provides that, at all stages, parties must consider settling litigation by ADR, and any party rejecting an ADR proposal by another party to the litigation must serve a witness statement giving reasons, within 21 days of the proposal.
(iii) The overriding objective requires the court to manage cases actively by, amongst other things, encouraging the parties to settle all or part of a case.
(iv) The court can stay proceedings for the use of ADR of its own initiative, and will order parties to take part in a particular ADR process even if they are unwilling to do so.
Select ONE of the following:
Select one:
A. (i), (ii) and (iv) only.
B. (i), (ii), (iii) and (iv) only.
C. (i), (ii) and (iii) only.
D. (i) and (iii) and (iv) only.
ANSWER: [C] (i) is a correct statement. See PD Pre-action Conduct and Protocols, Paras 3(d) and 8 to 11. (ii) is also correct. This sets out the model form of order that is commonly made in multi-track cases. (iii) This is correct – see CPR r.1.1 and r.1.4.2 (a), (e) and (f). Also r.3.1(2)(m) (iv) This is NOT correct. Whilst the court can stay proceedings on its own initiative (see CPR r.3.1(f)), it will not order parties to take part in a process if they are unwilling to do so. The court may direct unwilling parties to consider ADR but it will not compel them to take part in an ADR process. See Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576. This aspect of the decision in Halsey may be reviewed in due course (see Wright v Michael Wright Supplies Ltd [2013] EWCA Civ 234), but it represents the law at the moment. Therefore [C] is the correct answer.
The correct answer is: (i), (ii) and (iii) only.
You are instructed on behalf of Java Water plc (“Java”) which, as tenant, entered into a tenancy agreement with Capital Market Estates Ltd (“Capital”) as landlord of a spring water extraction facility in Cragdale. North Yorkshire. The parties agreed that there would be a fixed annual rent which would be calculated taking into account Java’s estimate of the annual sales of water from the premises. John Hicks, the Sales Manager acting on behalf of Java, represented to Colin Henderson, the Estates Director of Capital, that the projected sales figures for the spring water would be 800,000 litres in Year 1, 1,000,000 litres in Year 2 and 1,600,000 litres from Year 3 onwards. These figures were compiled by Joseph Reed, the Accounts Director of Java. In fact these representations were made negligently and, in any event, were false. This was because Java had always intended to and did undercut all other spring water companies in the area and consequently sold over 3 million litres in Year 1 alone. Java has carried out an internal audit on the figures and representations that were provided by John Hicks to Colin Henderson. This audit was undertaken by their employee Amy Sellers. It is clear from this audit that the projected sales figures for the Cragdale extraction facility were always intended to be greater than the figures provided to Capital. Capital has issued proceedings claiming damages for misrepresentation and negligent misstatement, and seeks to recover the higher rental income it would have obtained if accurate sales figures had been supplied. There is now a new dispute between the parties as to what the rental figure would have been if accurate sales figures been provided during the negotiations for the lease. Both parties have obtained expert valuation evidence on this issue – Jason Barr for Java and Oliver Wright for Capital. The parties have agreed to try to resolve the dispute by mediation. Any agreement that is made at mediation has to be signed off by Claire Beggs, the Chief Financial Officer of Java.
Which ONE of the following statements MOST CORRECTLY describes the people who should attend the mediation on behalf of Java, in addition to its lawyers?
Select one:
A. John Hicks, Joseph Reed, Amy Sellers and Jason Barr.
B. John Hicks and Claire Beggs.
C. John Hicks, Jason Barr and Claire Beggs.
D. Joseph Reed and Jason Barr.
Answer: [C] The correct answer is [C]. It is essential that Claire Beggs attends as she has authority to settle, so [A] and [D] are incorrect. Although the individual who compiled the original figures (Joseph Reed) and the person who audited those figures (Amy Sellers) could attend the mediation, it is not essential that they do so as the correct projections and all relevant supporting evidence can be brought to the mediation. It appears that Java will have difficulties in establishing there was no misrepresentation so the most hotly contested issue is likely to be quantum. Therefore it would be most useful, on these facts, to have Jason Barr (the expert) attend the mediation.
The correct answer is: John Hicks, Jason Barr and Claire Beggs.
Thorpe Enterprises Ltd (“Thorpe”) carries on business as a wholesale wine merchant. Last year, it entered into a contract with Vickers Wines Imports Ltd (Vickers) to buy 1,200 cases of wine per month from Vickers for a period of one year. However, owing to late and short delivery on a number of consignments, Thorpe terminated the contract for repudiatory breach and sought to recover its loss of profit from Vickers. The parties agreed to resolve their dispute by mediation. The parties reached a legally binding written settlement agreement at the mediation after various admissions were made by Vickers about the causes of the late delivery. Neither party is seeking to overturn the agreement. However, there is a dispute between them as to the true construction of one of the terms of the agreement relating to the supply of further consignments of wine. Vickers has issued proceedings seeking a declaration as to the true meaning of this term. Vickers seeks to rely on representations made by Thorpe while negotiating in the mediation and it has indicated that it is prepared to waive the without prejudice protection covering these, but Thorpe has refused to do so.
Which ONE of the following statements CORRECTLY describes the approach that should be taken by the court in this case?
Select one:
A. The court can admit evidence of what was said or written during the course of the Without Prejudice negotiations as part of the factual matrix or surrounding circumstances as an aid to the interpretation of the written agreement
B. The court can look at the Without Prejudice negotiations to ascertain whether an agreement was reached and, if so, to identify the terms of that agreement, but cannot do so in order to construe those terms.
C. The court can admit evidence of the Without Prejudice negotiations because Vickers has waived the privilege.
D. The court can look at the Without Prejudice material in order to decide who should bear the costs of the proceedings.
Answer: [A] This case turns on the Supreme Court decision in Oceanbulk Shipping & Trading SA v TMT Asia Limited [2011] 1 AC 662. The correct answer is [A]. See APA ADR Paras 6.57 to 6.66 and 14.126 to 14.132. [C] is incorrect because the court can only look at without prejudice communications if ALL parties waive the privilege (see Cumbria Waste Management Ltd v Baines Wilson [2008] EWHC 786 (QB)) and Thorpe has not waived the Without Prejudice rule. [D] is incorrect, because we are not told that these communications were made on the basis they were “without prejudice save as to costs”. In any event, the relevant issue is the proper construction of the compromise agreement, not costs.
The correct answer is: The court can admit evidence of what was said or written during the course of the Without Prejudice negotiations as part of the factual matrix or surrounding circumstances as an aid to the interpretation of the written agreement
Which ONE of the following statements INCORRECTLY describes the extent of the confidentiality rule in mediation in relation to domestic mediations?
Select one:
A. The court can override confidentiality if it is in the interests of justice to do so.
B. The fact that the parties have attempted mediation is not confidential.
C. If the parties to the dispute waive confidentiality the court will always admit evidence of what took place during the mediation.
D. In mediation, confidentiality works on two levels – the process itself is confidential, and communications between the mediator and the parties in closed private meetings are confidential and cannot be disclosed by the mediator to the opposing party without express consent of the party providing the information.
Answer: [C] Even if the parties waive confidentiality, the mediator is entitled to insist on it and in that event, the court will only override confidentiality and admit evidence about what took place at the mediation if it is in interests of justice to do so – see Farm Assist v DEFRA (No 2) [2009] BLR 399. So [C] is incorrect, and the other answers are correct. See APA ADR 14.135 to 14.145.
The correct answer is: If the parties to the dispute waive confidentiality the court will always admit evidence of what took place during the mediation.
Which ONE of the following statements about the use of mediation in multi-party international disputes is INCORRECT?
Select one:
A. Mediation in such cases can avoid difficult issues of deciding which court has jurisdiction and which system of law applies to the dispute.
B. A team of mediators can be appointed so that they complement one another in respect of language, culture and expertise.
C. Mediation in such cases can take a significant length of time, and may be expensive.
D. Mediators will have less pre-mediation contact with the parties before the main mediation meeting takes place.
Answer: [D] The correct answer is [D]. Mediating multi-party international disputes often involves the mediators holding numerous meetings with each of the parties in the place in which they are domiciled before the parties are brought together in one place for the mediation.
The correct answer is: Mediators will have less pre-mediation contact with the parties before the main mediation meeting takes place.
Paul Dupont is a master craftsman who is domiciled and habitually resident in France. He was engaged as a subcontractor by Jenson Builders plc, a company registered in England and Wales, to carry out some repair work to a small section of the dome of St Paul’s Cathedral in London. The contract was governed by English law. A dispute arose between him and Jenson Builders plc as to the proper sum due to him in respect of the work. The parties tried to resolve the dispute by mediation which took place on 5 November 2016. No agreement was reached at the mediation. The time limit for issuing proceedings under section 5 of the Limitation Act 1980 in respect of the claim for breach of contract expired on 6 November 2016. It is now 20 November 2016. Paul Dupont seeks your advice on whether he can still bring a claim against Jenson Builders plc in respect of the breach of contract.
Which ONE of the following statements is CORRECT?
Select one:
A. Paul Dupont cannot bring a claim against Jenson Builders plc as the primary limitation period expired on 6 November 2016 and it cannot be extended.
B. As this is a cross-border dispute, Paul Dupont can bring a claim for breach of contract because the mediation started before the primary limitation period expired, and therefore the limitation period is extended by s.33A of the Limitation Act 1980 and it will expire at the end of eight weeks after the mediation ends.
C. As this is a cross-border dispute, Paul Dupont can bring a claim for breach of contract as the limitation period is extended for a period of four weeks from the date the mediation ends.
D. As this is a cross-border dispute, Paul Dupont can bring a claim for breach of contract provided he does so within three months from the date the mediation ends.
Answer: [B] [B] describes the effect of s.33A of the Limitation Act 1980. [C] and [D] are incorrect because they incorrectly state the length of the period of the extension. [A] is incorrect because this is a cross-border dispute and s.33A operates to extend the limitation period if a mediation starts before the time limit expires. If not so extended by s.33A, so that the time limit would expire before the mediation ends, or less than eight weeks after it ends, then for the purposes of initiating proceedings, the time limit expires instead at the end of eight weeks after the mediation ends. See APA ADR 19.50 to 19.57.
The correct answer is: As this is a cross-border dispute, Paul Dupont can bring a claim for breach of contract because the mediation started before the primary limitation period expired, and therefore the limitation period is extended by s.33A of the Limitation Act 1980 and it will expire at the end of eight weeks after the mediation ends.
Bloggs plc brought proceedings against Watts Engineering plc in the Commercial Court. The parties agreed that a Judge of the Commercial Court would carry out a judicial early neutral evaluation of the main issue in the case, namely whether electrical fans made by Watts Engineering plc for Bloggs plc for insertion into their mobile air conditioning units were defective and, if so, the likely quantum of the claim. An early neutral evaluation hearing took place last week before Mr Justice Sams, with both parties presenting evidence and making oral submissions to the Court. Mr Justice Sams has now issued an evaluation which states that, in his opinion, the fans were defective and Bloggs plc are likely to recover damages in the sum of £200,000. Bloggs plc are willing to accept £200,000 but Watts Engineering plc are refusing to accept the evaluation of Mr Justice Sams. Bloggs plc want advice on how they should proceed.
Which ONE of the following statements is CORRECT?
Select one:
A. As Watts Engineering plc do not accept the evaluation neither party can make any use of the evaluation for any purpose.
B. Bloggs plc should make a Claimant’s offer to settle based on the evaluation.
C. Bloggs plc should take enforcement proceedings against Watts Engineering plc to compel compliance with the evaluation of Mr Justice Sams.
D. Bloggs plc should seek a stay of the proceedings as the evaluation has now been issued.
ANSWER: [B] [C] and [D] are both incorrect because an evaluation is not binding on the parties and one party cannot force the other side to negotiate or reach agreement or enter judgment based on an evaluation. [A] is incorrect because it goes too far in saying no use can be made of the evaluation. Evaluations can be helpful in formulating offers, so [B] is the correct answer. See Ch 22 APA ADR.
The correct answer is: Bloggs plc should make a Claimant’s offer to settle based on the evaluation.
Stafford Lees Ltd bought one hundred washing machines from Hottub plc for sale through their retail shops in the West Midlands. Ten customers who purchased these machines returned them within a month, claiming that they were defective in that the drum stopped rotating. Hottub plc has tested the defective machines and contends that the drum stopped rotating simply because the machines were overfilled with laundry. Stafford Lees Ltd do not accept this. It contends that the machines are defective and it has rejected all of the washing machines and seeks the return of the price paid. Both sides want a speedy solution to the dispute as Hottub plc supply other domestic electrical equipment to Stafford Lees Ltd. Both parties agree that they would benefit from an independent expert’s opinion on the cause of the failure of the drums, although they want to retain control over the outcome of the dispute at this stage.
Which ONE of the following options BEST DESCRIBES the form of ADR that they should pursue?
Select one:
A. Early Neutral Evaluation.
B. Facilitative Mediation.
C. Expert Determination.
D. Arbitration.
Answer: [A] [A] is the correct answer. [B] will not help at this stage because an independent expert’s opinion on the cause of failure is needed first. [C] and [D] are incorrect because the parties do not want a decision imposed on them at this stage.
The correct answer is: Early Neutral Evaluation.
You have been briefed on behalf of Desmond Jones to appear today at a pre-trial review in the County Court at Central London. The claimant is Cowan (Inglehurst) Ltd, who have brought proceedings against your client claiming damages for breach of contract said to amount to £45,000. At the door of the court and before they were called before the District Judge for the hearing of the pre-trial review, the parties settled the claim. Desmond agreed to pay the Claimant £10,000 in full and final settlement. The Claimant wants to go before the District Judge and have judgment entered for that sum, by consent.
Which of the following statements would you NOT make to Desmond when advising him whether to agree to the Claimant’s suggested method of recording the settlement?
Select one:
A. Entering judgment at the pre-trial review is a more expensive way of disposing of the claim compared to the other methods that are available.
B. Entering judgment means that Desmond has lost the proceedings, whereas the compromise figure implies there were risks for both sides
C. Entering judgment means that Cowan (Inglehurst) Ltd can readily use the court’s enforcement procedures against Desmond.
D. Entering judgment may mean the judgment is available to credit scoring agencies when Desmond’s creditworthiness is considered in the future.
ANSWER: [A] [B] to [D] are typical reasons why lawyers rarely if ever advise clients to compromise by allowing judgment to be entered against them for the agreed figure. The agreement can be recorded in other ways which do not carry such disadvantages for the party paying the agreed sum: See LGS 03 notes and also Ch 23 and 32.19 of APA ADR.
The correct answer is: Entering judgment at the pre-trial review is a more expensive way of disposing of the claim compared to the other methods that are available.
Crauford Engines Ltd has brought a High Court claim against Bernadotte plc seeking damages for breach of contract. You have been briefed to appear for Crauford Engines Ltd on a case management conference. In discussions between the parties before the hearing, common ground was found and terms have been agreed settling the entire dispute with Bernadotte plc agreeing to pay £50,000, with each side bearing its own costs. You agree with your opponent to draw up a consent order.
Which ONE of the following statements is CORRECT?
Select one:
A. Whether the consent order provides for the claim to be stayed or discontinued makes no practical difference.
B. The only way of disposing of the proceedings is to provide for the entry of judgment for the successful party.
C. If nothing is said about costs in the consent order Crauford Engines Ltd will be entitled to recover its costs against Bernadotte plc because it is the successful party.
D. If the consent order provides for the claim to be discontinued, without anything more this means that Bernadotte plc will be entitled to recover its costs against Crauford Engines Ltd.
Answer: [D] [D] is the correct answer. Answer [D] is the effect of CPR, r. 38.6; APA to ADR para 23.39. This is almost certainly the opposite of what the parties intended, because the claim has been settled on terms that the defendant is to pay £50,000, which means the claimant is the winner. Silence on costs ([C]) means that each side bears its own costs, so [C] is incorrect. There is a practical difference to staying and discontinuing a claim because on discontinuance, the claimant will usually have to pay the Defendant’s costs as stated above, so [A] is also incorrect. The parties can dispose of the proceedings without entering judgment so [B] is also incorrect.
The correct answer is: If the consent order provides for the claim to be discontinued, without anything more this means that Bernadotte plc will be entitled to recover its costs against Crauford Engines Ltd.
You are instructed on behalf of Jetstream Petroleum plc which, as tenant, entered into a tenancy agreement with Forecourt Estates Ltd as landlord of a petrol filling station in Salford. The parties agreed that the rent should be a fixed annual rental figure, having regard to the projected estimated annual sale of petrol from the premises. Clause 14 of the lease provides that in the event of a dispute between the parties, the rent should be determined by a surveyor appointed by the Royal Institute of Chartered Surveyors (“RICS”) whose decision will be final and binding on the parties in the absence of fraud. The surveyor appointed by RICS has done what he was instructed to do and has issued a determination pursuant to Clause 14. Jetstream Petroleum plc wish to set aside the decision because they believe that the surveyor has made a mistake in assessing the relevant quantity of petrol sold from the premises.
Which ONE of the following statements is CORRECT?
Select one:
A. Jetstream Petroleum plc cannot challenge the decision. It is bound by the surveyor’s decision if it was made honestly and in good faith, even if the expert has made a mistake.
B. Jetstream Petroleum plc can challenge the decision as the surveyor appears to have made a manifest error in reaching his determination.
C. Jetstream Petroleum plc can challenge the decision because the surveyor’s mistake over the quantity of petrol sold amounts to a material departure from his instructions.
D. Jetstream Petroleum plc is not able to challenge the decision of the surveyor in any circumstances as an Expert Determination is never capable of being challenged by the parties.
Answer: [A] [A] is the correct answer. The parties have not agreed that the decision is capable of being challenged on the grounds of a manifest error (so [B] is incorrect). That being so, the parties are bound by the decision even if the expert has made a mistake. See Jones v Sherwood Computer Services [1992] 1 WLR 277. [D] is wrong in law and on the facts as the contract allows for it to be challenged on the grounds of fraud and it can be set aside as a matter of law if the expert has materially departed from his instructions (although we are told he has not done so here). Making a mistake does not amount to a material departure – so [C] is also incorrect.
The correct answer is: Jetstream Petroleum plc cannot challenge the decision. It is bound by the surveyor’s decision if it was made honestly and in good faith, even if the expert has made a mistake.
Which ONE of the following statements about non-adjudicative ADR options is LEAST LIKELY to be correct?
Select one:
A. Creative settlement solutions can be devised to meet the needs of the parties, including agreements that the court would have no power to make.
B. The parties control the outcome.
C. A formal, set procedure is followed and the third party neutral can adopt an inquisitorial/investigative role if required.
D. The parties have control over the selection of the process and, if appropriate, the neutral third party.
Answer: [C] [A], [B] and [D] are all correct statements illustrating the flexibility of non-adjudicative processes. The statement least likely to apply to non-adjudicative ADR processes is [C], therefore the correct answer is [C]. In all non-adjudicative processes, there is no formal, set procedure and the parties are free to agree and vary the procedure between themselves (e.g. in mediation). The procedure can thus be varied or tailored to meet the nature of the case and the needs the parties. This is not so in the more formal set procedures followed in many adjudicative ADR processes. In some adjudicative processes (e.g. expert determination), the third party neutral can be given an inquisitorial/investigative role if required.
The correct answer is: A formal, set procedure is followed and the third party neutral can adopt an inquisitorial/investigative role if required.
Which of the statements numbered (i) to (v) below about Expert Determination is/are INCORRECT? (i) In an Expert Determination the expert is acting as a witness, so Part 35 of the Civil Procedure Rules governing the provision of expert evidence applies to the determination. (ii) Expert determination is useful for cases raising technical issues where the parties want a decision from a third party which is binding on them. (iii) Expert determination is often selected by the parties because a clause in the underlying contract between them requires the use of Expert Determination to resolve all disputes arising under the contract before resorting to litigation. (iv) In all Expert Determinations the expert appointed will have a forensic/investigatory role and can conduct his or her own investigations rather than simply relying on material provided by the parties. (v) An expert acts in a quasi-judicial capacity and thus has immunity from suit, like all judges. Select ONE of the following: Select one: A. (i), (ii) and (v) only. B. (i), (iv) and (v) only. C. (i) and (iv) only. D. (v) only.
ANSWER: [B] The statement in (i) is incorrect; in an ED, the expert is not acting as a witness, so the rules relating to the giving of expert evidence in Part 35 CPR do not apply. (ii) and (iii) are correct statements. (iv) is incorrect, because the expert will usually only conduct his own investigations if the parties in the appointing contract agree that he may do so (and also agree to pay for the time etc that this may take). (v) is incorrect – an expert is not acting in a judicial capacity and has no statutory immunity from suit, although he may have contractual immunity, but we do not know if this exists in this case.
The correct answer is: (i), (iv) and (v) only.
Holt Services Ltd has brought a claim in the County Court against Baker plc claiming the price due for a consignment of widgets which it sold and delivered to Baker plc earlier this year. Baker plc has filed a Defence alleging that the widgets contained defects. Holt Services Ltd feels that the time is right to attempt to resolve the dispute by ADR, although Baker plc has resisted previous offers to use ADR made before proceedings were issued. The parties are about to complete Directions Questionnaires.
Which ONE of the following statements BEST describes the NEXT STEP that Holt Services Ltd should take in the litigation towards trial?
Select one:
A. Holt Services Ltd should apply to strike out the Defence because Baker plc has unreasonably refused to consider ADR.
B. Holt Services Ltd should complete the Directions Questionnaire and request the Court to stay the proceedings so that the parties can attempt to resolve the dispute by an ADR process.
C. Holt Services Ltd should apply to the court for an order that Baker plc pays some or all of its costs of the proceedings on the grounds that Baker plc has unreasonably refused to consider ADR.
D. Holt Services Ltd should do nothing at this stage, but at the conclusion of the trial it should ask the court to take into account Baker plc’s refusal to engage in ADR when assessing costs.
Answer: [B] The court could strike out a Defence for refusing ADR, but it is unlikely to do so as this may contravene Article 6 ECHR. Therefore [A] is not the best answer. The step in [C] is premature at this stage because such as decision would also need to take into account a final judgment order, which does not yet exist. [D] does not engage with the question, which refers to a next step that should be taken during the litigation in the run up to trial (doing nothing until the end of the trial does not identify a next step taken during this period). The best answer is [B]. Review Ch 7 APA ADR.
The correct answer is: Holt Services Ltd should complete the Directions Questionnaire and request the Court to stay the proceedings so that the parties can attempt to resolve the dispute by an ADR process.
Ethan Banham (“EB”) issued proceedings against Trevor Watts Solicitors LLP (“TW”) in the High Court, claiming damages for £200,000 for professional negligence during a conveyancing transaction that TW carried out on EB’s behalf. TW filed a Defence denying negligence and counterclaimed for unpaid fees of £15,400 for their work during the transaction. Shortly before the issue of proceedings, EB’s solicitors invited TW to enter mediation. TW refused on the grounds that the issues in the case were not clearly defined. Later on, after the statements of case had been filed by each party, and again after witness statements had been filed, EB repeated his invitation. On these two further invitations, TW refused mediation on the grounds that the issues were too complex, their reputation was at stake and they needed to be vindicated at trial. They also said that mediation was not likely to be successful because EB had refused their Part 36 offer of £6,000 to settle the proceedings (both claim and counterclaim). At trial, the Judge held that TW had not been negligent. He dismissed EB’s claim and awarded TW £12,500 on their counterclaim for the unpaid fees. The parties are now making submissions on costs. TW has asked for an order that EB (having lost) should pay their costs of the proceedings. EB has submitted that TW should be deprived of some or all of their costs because, although they won, their refusal of ADR was unreasonable.
Which of the following statements numbered (i) to (iv) below is/are CORRECT? (i) As the overall winner, TW would normally be awarded the costs of litigating the claim and counterclaim, but the court can make a different order on considering all of the circumstances of the case, including the conduct of the parties. (ii) The extent to which other settlement methods had been attempted, including the making of the Part 36 offer, is not a relevant factor to be considered when applying the case of Halsey v Milton Keynes General NHS Trust. (iii) The court may accept that it was reasonable for TW to refuse ADR before the proceedings on the grounds that the issues needed to be more clearly defined, but the court will also consider whether this clarification could have been achieved before or during a mediation. (iv) As TW made an offer to settle which EB did not beat at trial, the court must order EB to pay all of TW’s costs. Select ONE of the following:
Select one:
A. (i), (iii) and (iv) only.
B. (ii) and (iv) only.
C. (i) and (iii) only.
D. (i) only.
ANSWER: [C] (i) This is a correct statement and it spells out the position on costs that derives from CPR r.44.2(2)(a). (ii) This is an incorrect statement. The extent to which other settlement methods have been attempted certainly is one of the six factors which the court will consider in deciding whether a party has acted unreasonably in refusing ADR (see Halsey and Paras 8.23 to 8.43 of APA ADR). (iii) This is a correct statement. See the cases discussed at APA ADR Paras 8.64 to 8.70. (iv) This statement is incorrect. Under the self-contained regime of Part 36, a party who fails at trial to better a rejected Part 36 offer to settle will be deprived of their costs or ordered to pay the other party’s costs only from the end of the relevant period after the making of the offer, not all of the costs of the litigation). If the offer is not made under Part 36, then the failure to beat the offer is only one matter which the court will take into account in deciding how to exercise its costs discretion under r.44.2(4)(c). The correct answer therefore is [C].
The correct answer is: (i) and (iii) only.
