Approach of the courts to ADR Flashcards
1
Q
How do the Pre-action protocols encourage ADR?
A
- All PAPs encourage consideration of ADR
- Proceedings should not be commenced if a settlement is still being actively explored
- Before starting proceedings, C should send D a detailed letter before claim and D should send C a detailed response
- C should set out the form of ADR C considered suitable and invite D to agree
- D’s response should indicate whether he agrees, and if not, should state why, and suggest an alternative form or say why ADR is not appropriate
2
Q
How are the PAPs considered in court when facilitating ADR?
A
- The court will expect compliance and may ask to explain the steps taken towards ADR
- The court will ask for an explanation as to why ADR was not considered
- In all cases, C is required to state in the claim form of the POC whether he has complied with the PD/Protocol. This means the reasonableness of the Pre-Action Conduct is considered by the Court.
3
Q
How do the court guides provide encouragement for ADR?
A
- Representatives must ensure clients are fully aware of ADR options and have considered it
- At any CMC, the judge can invite the use of ADR
- Judge may adjourn the case to allow time to engage in ADR
- Judge will inquire about steps taken to resolve by ADR
- PAP may require at least one face-to-face meeting before commencement of proceedings
4
Q
What is the overriding objective?
A
Dealing with cases justly and at a proportional expense.
5
Q
How is the overriding objective facilitated?
A
- ensuring the parties are on equal footing
- saving expense
- dealing with cases proportionately
- ensuring cases are dealt with expeditiously and fairly
- allotting it to an appropriate share of the court’s expenses
6
Q
How does the court further the OO?
A
- actively managing cases, which includes encouraging parties to use ADR
- monitoring compliance
- directing the parties to consider ADR at a CMC or pre-trial review
- the court may grant a stay on its own
- making an Ungley order (that if a party refuses ADR, he must justify it not less than 28 days before trial)
7
Q
How does the court support ADR through cost management?
A
- court can refuse to approve budgets if the figures are disproportionate and unreasonable
- when making a cost management direction, the court must take into account the available budget and costs of each step (including ADR)
8
Q
How do Directions Questionnaires support ADR?
A
On the Directions Questionnaire, a party may request a stay while they attempt to settle
9
Q
Granting a stay to enable ADR
A
- stays will usually be for one month (but can be extended)
- if the court stays at the track allocation stage, the case will not be allocated until the end of the stay
- a stay avoids having to prepare for ADR and litigation simultaneously
- a stay can be ordered any stage, on application or by the court on its own
- the courts may grant a stay to enforce an ADR clause
10
Q
What must the parties notify the court of during the stay?
A
- C must keep the court informed about the outcome
- if no settlement is reached, C must apply to have the stay lifted
- if C doesn’t tell the court by the end of this period that the settlement has been reached, the court will give case management directions as it sees appropriate
11
Q
What factors does the court consider in deciding whether to grant a stay?
A
- the extent to which the parties had complied with pre-action protocols
- whether the dispute is suitable for the agreed ADR
- the costs of that ADR compared to the costs of litigation
- whether a stay would support the overriding objective
12
Q
WHAT IS THE APPROACH OF THE COURTS TO CONTRACTUAL ADR CLAUSES?
A
- the court will give effect to ADR by upholding and enforcing ADR clauses
- if the parties have agreed on a particular method of ADR, the court has an inherent discretionary power to stay proceedings to require the parties to pursue it
13
Q
What are the three requirements for an ADR clause to be binding?
A
- the process must be sufficiently certain (there should not be the need for an agreement at an stage before matters could proceed)
- the administrative processes for selecting a party and for payment have to be defined
- the process/a sufficient model of the process should be set out so the detail is sufficiently certain
14
Q
What will the court look for when enforcing an ADR clause?
A
- sufficiently certain and unequivocal commitment to ADR
- a means of discerning the steps each party was required to take to put the process in place
- a clearly defined process
- an appropriate choice of ADR
- whether the form of ADR can actually be enforced (e.g. not voluntary ADR)
15
Q
What if the clause doesn’t provide a particular ADR?
A
- It may still be upheld if the procedure envisaged is sufficiently certain
- generally, agreements to negotiate in good faith are unenforceable, because good faith is too open-ended. However the court will try to find an interpretation to give it effect.
