ch 11

Question 1

when can a court penalize a party?

Answer 1

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

Question 2

what orders can the court make?

Answer 2

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

Question 3

most common sanction for refusing ADR?

Answer 3

adverse order as to costs

Question 4

when does the court have power to strike out a case?

Answer 4

when the claimant has the opportunity to obtain full redress through ADR and oursued litigation for costs advantage

Question 5

where is the courts discretion about costs set out?

Answer 5

CPR pt 44

Question 6

sanctions court can impose for non-compliance with protocols?

Answer 6

staying proceedings

order party at fault pays costs

order party at fault pays costs on indemnity basis

deprive them of interest

Question 7

what can court do to winning party who unreasonably refuses ADR?

Answer 7

deprive them of some or all of the costs

Question 8

what are the Halsey factors?

Answer 8

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

Question 9

when do Halsey factors become relevant?

Answer 9

when deciding sanction for party unreasonably refusing ADR

Question 10

nature of dispute?

Answer 10

some cases might not be suitable for ADR=reasonable to refuse ADR

Question 11

merits of the case?

Answer 11

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

Question 12

consequence of party who has unrealistic view of merits of their case?

Answer 12

other party get a nuisance-value offer and force a settlement in respect of lack of merit of a case

Question 13

ADR having reasonable prospect of success?

Answer 13

burden on unsuccessful party to show ADR would have had a reasonable prospect of succeeding

Question 14

when have courts refused to penalize a party for refusing ADR?

Answer 14

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

Question 15

are the halsey factors exhaustive?

Answer 15

no

Question 16

other factors court may consider?

Answer 16

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

Question 17

when do Halsey factors not apply?

Answer 17

when claimant failed to intiate ADR

Question 18

consequence of failing to initate?

Answer 18

it’s a pre-action requirement=adverse order as to costs

Question 19

will court consider def’s failure to accept reasonable offer?

Answer 19

yes

Question 20

can there be an adverse cost order in delaying to consent to ADR?

Answer 20

if unreasonable then yes

Question 21

what can the court do if both parties are at fault?

Answer 21

refuse to make any costs order at all

Question 22

Rolf v De Guerin?

Answer 22

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

Question 23

can parties be penalized for refusing ADR before an appeal/after trial?

Answer 23

yes

Question 24

can a party be penalized for backing out of ADR at the last moment?

Answer 24

yes

Question 25

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?

Answer 25

penalize

Question 26

when can the court make an indemnity cost order?

Answer 26

unreasonable conduct to a high degree

Question 27

example of when an indemnity order has been made?

Answer 27

party issuing a claim during mediation
failure to accept a reasonable offer
party resisted sensible approach to finding a solution

Question 28

is silence in the face of an ADR invitation reasonable?

Answer 28

no could get a sanction

Question 29

when can silence to ADR offer be reasonable?

Answer 29

where it was very obvious that ADR not appropriate

parties currently undergoing a different ADR

Question 30

practical steps that can be taken to avoid a sanction?

Answer 30

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

Question 31

can the court investigate why process failed to result in an agreement?

Answer 31

no, without prejudice applies