ch 11 Flashcards
when can a court penalize a party?
if they refuse to comply with an order to attempt ADR
if they refuse to accept an offer through ADR before proceedings
refuse to accept invite from otherside to use ADR
what orders can the court make?
deprive parties of costs if success in lit
order them to pay some or all of other side’s costs
order them to pay costs on indemnity basis
order a higher rate of interest on damages to be paid
deprive a party of interests
most common sanction for refusing ADR?
adverse order as to costs
when does the court have power to strike out a case?
when the claimant has the opportunity to obtain full redress through ADR and oursued litigation for costs advantage
where is the courts discretion about costs set out?
CPR pt 44
sanctions court can impose for non-compliance with protocols?
staying proceedings
order party at fault pays costs
order party at fault pays costs on indemnity basis
deprive them of interest
what can court do to winning party who unreasonably refuses ADR?
deprive them of some or all of the costs
what are the Halsey factors?
nature of dispute
merits of case
extent other settlement methods attempted
disproportionality of ADR costs
delay in organising ADR
whether ADR has a reasonable prospect of success
when do Halsey factors become relevant?
when deciding sanction for party unreasonably refusing ADR
nature of dispute?
some cases might not be suitable for ADR=reasonable to refuse ADR
merits of the case?
consider whether party’s assessment of merits is reasonable
party genuinely believes they have strong case and good reason=refusal justified
party unreasonably believes strong case=unreasonable
consequence of party who has unrealistic view of merits of their case?
other party get a nuisance-value offer and force a settlement in respect of lack of merit of a case
ADR having reasonable prospect of success?
burden on unsuccessful party to show ADR would have had a reasonable prospect of succeeding
when have courts refused to penalize a party for refusing ADR?
relationship so bad, mediation would have never worked
insufficient room for manoeuvre to make mediation
party’s attitude would have stopped success of mediation
one party strong case and other party’s conduct showed unwillingness to accept nuisance payment
are the halsey factors exhaustive?
no
other factors court may consider?
whether ADR order was made by the court
further info or expert evidence needed before ADR can be done
impact of pt 36 offers on ADR refusal
when do Halsey factors not apply?
when claimant failed to intiate ADR
consequence of failing to initate?
it’s a pre-action requirement=adverse order as to costs
will court consider def’s failure to accept reasonable offer?
yes
can there be an adverse cost order in delaying to consent to ADR?
if unreasonable then yes
what can the court do if both parties are at fault?
refuse to make any costs order at all
Rolf v De Guerin?
following rejected for refusing ADR:
wanted his day in court and was proved correct
he would have had to accept his guilt at mediation
behaviour of husband during mediation making it more difficult
can parties be penalized for refusing ADR before an appeal/after trial?
yes
can a party be penalized for backing out of ADR at the last moment?
yes
if parties have waived without prejudice and it is clear one party’s conduct as to having a realistic position is shown what can courts do?
penalize
when can the court make an indemnity cost order?
unreasonable conduct to a high degree
example of when an indemnity order has been made?
party issuing a claim during mediation
failure to accept a reasonable offer
party resisted sensible approach to finding a solution
is silence in the face of an ADR invitation reasonable?
no could get a sanction
when can silence to ADR offer be reasonable?
where it was very obvious that ADR not appropriate
parties currently undergoing a different ADR
practical steps that can be taken to avoid a sanction?
don’t return invitation with silence
respond promptly, in writing and detailed reason for response
bring it up if there is lack of evidence justifying your response
can the court investigate why process failed to result in an agreement?
no, without prejudice applies
