ADR (w8)

Question 1

what is the role of P36 offer?

Answer 1

encourage parties to settle outside of court
- party which makes realistic proposal should get some benefit

Question 2

when and who can make a p36 offer?

Answer 2

at any stage of proceedings by either party

Question 3

what are the requirements for a valid p36 offer?

Answer 3

• be in writing (form N242A)
• make it clear it’s pursuant to p36
• specify a period of not less than 21d where D will be liable for C’s costs
• state if it’s for part or whole of claim
• state if it takes into account any counterclaims
• D has 14 days to pay money as a single sum

Question 4

when is a p36 offer made?

Answer 4

when it is served on the offeree

Question 5

can p36 offeror withdraw their offer?

Answer 5

depends if relevant period has expired-
>if expired, need court’s permission
>if not expired, changes/withdrawal will take place after relevant period, if offeree has not served notice of acceptance

Question 6

can offeror of a p36 withdraw offer after notice of acceptance has been served be offeree?

Answer 6

apply for court permission within 7 days of notice of acceptance

Question 7

what are the consequences of accepting a p36 offer?

Answer 7

-claim is stayed; or
- settlement sum to be paid; or
- costs depending on when offer was accepted

Question 8

which party pays for costs when C accepts claim within relevant period?

Answer 8

D pays costs of proceedings up to date of acceptance served

Question 9

who pays for costs when C accepts claim after relevant period?

Answer 9

offeree pays for costs from end of relevant period up to when offer was accepted

Question 10

what happens when C fails to obtain a judgment more advantageous than D’s offer?

Answer 10

C pays for D’s costs from date of relevant period expiry and interest on those costs

Question 11

define split costs order within p36 offers

Answer 11

-D will have to pay C’s costs until the expiry of relevant period
- C will have to pay costs from expiry until acceptance

Question 12

what happens when C gets a judgment more advantageous than D’s offer

Answer 12

no consequences- D will pay for C’s costs (losing party rule)

Question 13

what happens when C obtains a judgment better than the offer they made to D?

Answer 13

D receives penalties :
-interest on award at rate of 10% max
- costs from end of relevant period assessed on indemnity basis
- interest on costs at rate max of 10%
- an additional amount based on percentage of award

Question 14

define discontinuance

Answer 14

Only C can choose not to pursue a claim against D any further (part or whole of claim)

Question 15

what are the consequences of discontinuance?

Answer 15

C is liable to pay D’s costs up to point of discontinuance

Question 16

what is the procedure for discontinuance?

Answer 16

• file a notice to court
• serve copy on every party
• takes place from date of service
• cost order made in favour of D on standard basis

Question 17

What is a Tomlin order?

Answer 17

consent order where courts order a stay of proceedings on terms previously agreed between parties.

Question 18

what is mediation within ADR

Answer 18

a neutral person acts as negotiator

Question 19

what are the pros and cons of mediation (ADR)

Answer 19

+ confidential
+flexible
+quick and easy
+parties can work on commercial relationship
-not certain that parties will reach an agreement
-both parties must have genuine desire to settle
- not legally binding

Question 20

define early neutral evolution / expert appraisal / expert evaluation (ADR)

Answer 20

independent expert / judicial evaluator meets with parties to give non-binding assessment of dispute.

Question 21

what is expert determination within ADR

Answer 21

independent expert appointed by parties on contractual terms - so decision can be binding upon them.

Question 22

what is arbitration? (ADR)

Answer 22

legally binding process where dispute is resolved by an impartial adjudicator.
- it can be a clause included in parties’ contract

Question 23

what are the pros and cons of arbitration (ADR)

Answer 23

+confidentiality
+flexible
+parties can choose arbitrators
+issues considered more thoroughly
+legally binding
-fewer remedies available than ones in court
-won’t preserve a good working relationship
-slow & expensive
-third parties cannot be added to proceedings.
-both parties must agree to go to arbitration

Question 24

pros and cons of expert appraisal (ADR)

Answer 24

+confidentiality
+appropriate for technical issues
+preserve working relationship
+ quick & less expensive
-not appropriate for non-technical issues
-cannot test credibility by witnesses

Question 25

how are mediation costs apportioned when using alternative disputes

Answer 25

each party bears own cost, cost of mediator is split

Question 26

what are the formalities of arbitration?

Answer 26

• must comply with s5&6 AA
• must be in writing
• refer present and future ‘disputes’ to arbitration