ADR (w8) Flashcards
what is the role of P36 offer?
encourage parties to settle outside of court
- party which makes realistic proposal should get some benefit
when and who can make a p36 offer?
at any stage of proceedings by either party
what are the requirements for a valid p36 offer?
- 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
when is a p36 offer made?
when it is served on the offeree
can p36 offeror withdraw their offer?
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
can offeror of a p36 withdraw offer after notice of acceptance has been served be offeree?
apply for court permission within 7 days of notice of acceptance
what are the consequences of accepting a p36 offer?
-claim is stayed; or
- settlement sum to be paid; or
- costs depending on when offer was accepted
which party pays for costs when C accepts claim within relevant period?
D pays costs of proceedings up to date of acceptance served
who pays for costs when C accepts claim after relevant period?
offeree pays for costs from end of relevant period up to when offer was accepted
what happens when C fails to obtain a judgment more advantageous than D’s offer?
C pays for D’s costs from date of relevant period expiry and interest on those costs
define split costs order within p36 offers
-D will have to pay C’s costs until the expiry of relevant period
- C will have to pay costs from expiry until acceptance
what happens when C gets a judgment more advantageous than D’s offer
no consequences- D will pay for C’s costs (losing party rule)
what happens when C obtains a judgment better than the offer they made to D?
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
define discontinuance
Only C can choose not to pursue a claim against D any further (part or whole of claim)
what are the consequences of discontinuance?
C is liable to pay D’s costs up to point of discontinuance
what is the procedure for discontinuance?
- 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
What is a Tomlin order?
consent order where courts order a stay of proceedings on terms previously agreed between parties.
what is mediation within ADR
a neutral person acts as negotiator
what are the pros and cons of mediation (ADR)
+ 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
define early neutral evolution / expert appraisal / expert evaluation (ADR)
independent expert / judicial evaluator meets with parties to give non-binding assessment of dispute.
what is expert determination within ADR
independent expert appointed by parties on contractual terms - so decision can be binding upon them.
what is arbitration? (ADR)
legally binding process where dispute is resolved by an impartial adjudicator.
- it can be a clause included in parties’ contract
what are the pros and cons of arbitration (ADR)
+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
pros and cons of expert appraisal (ADR)
+confidentiality
+appropriate for technical issues
+preserve working relationship
+ quick & less expensive
-not appropriate for non-technical issues
-cannot test credibility by witnesses
