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rdoc pt 1 > ch 7 > Flashcards

ch 7 Flashcards

1
Q

lawyers duty in relation to costs?

A

explain potentail expense of dispute resolution including litigation and ADR

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2
Q

5 main reasons why ADR may be cost effective?

A

can be completed for a fixed agreed fee

parties can control expenses through their agreement choosing cheaper ADR

parties can avoid or control expense of processes such as disclosure, exchange of WS

easier for lawyers to estimate ADR time than litigation

ADR can avoid escalating costs unlike adversarial litigation

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3
Q

8 main elements of expense in ADR?

A

fee for ADR process

lawyers fee

brief fee (if counsel instructed in connection with ADR)

any other disbursements

expense to attend ADR

expense of lawyers attendance

expense of anyone else asked to attend

paying for location

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4
Q

when is negotiation most cost effective?

A

done by written submissions or telephone

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5
Q

how is cost in negotiation framed?

A

cost for lawyers time, conduct negotiation and draw up settlement terms

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6
Q

what adds significant expense to negotiation?

A

joint settlement meeting in neutral location

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7
Q

how can costs be negotiated in negotiation?

A

yes

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8
Q

what does mediation cost depend on?

A

cost of mediator or service provider

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9
Q

how will mediator fee be calculated?

A 
qualification and experience of mediator, 
time process will take, 
value of claim, 
level of contact with mediator,
preparation before mediation
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10
Q

does mediation agreement provide info on what is included in the fee of mediation?

A

yes

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11
Q

guidance online for mediation fee?

A

gov website e.g. £50 plus VAT for small claim per party

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12
Q

when will lawyers normally attend mediation?

A

high value case

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13
Q

how is cost sorted in mediation?

A

as parties wish in their agreement

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14
Q

generally what is most expensive form of ADR?

A

arbitration

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15
Q

how can arbitration be made cheaper?

A

one arbitrator conducted through paperwork

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16
Q

where can guidance on cost of arbitration be found?

A

chartered institute of arbitrators provides cost controlled arbitration

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17
Q

how much will a paper-based or IT-based arbitration be?

A

charged on hourly fee, few hundred

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18
Q

approximately how much for a hearing for a day? a week?

A

day-several thousand, week-tens of thousands

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19
Q

what won’t apply in arbitration?

A

costs management and principle of proportionality unless parties agree

20
Q

how is cost determined for early neutral evaluation, expert determination/evaluation or adjudication?

A

paper vs. oral

3rd party fee-complexity of case

21
Q

typical price of 3rd p for adjudication, evaluation etc.?

A

£250-500/hr

22
Q

priorities for self-funding client?

A

cost effective ADR option

23
Q

what is ATE insurance?

A

active after the event insurance

24
Q

what is ATE insurance used for?

A

manage risk

25
Q

what is third party or litigation funding?

A

3rd party bearing expense in return for share of damages

26
Q

does 3rd party or litigation funding breach codes of conduct?

A

no

27
Q

what must LTA (litigation funding agreement) include?

A

whether and how the funder may have input in decisions

28
Q

what is a confidential fee agreement?

A

client will not pay legal fees if the claim is lost and may pay up to 100% success fee if won and liable to pay disbursements

29
Q

what should CFA provide for?

A

potential use of ADR

what happens if case settled

30
Q

with CFA does success fee have to be revealed?

why?

A

no

would disclose the lawyers view of the chance of success

31
Q

what is DBA (damages based funding)?

A

lawyer being paid on the basis of being paid from any famages recovered

32
Q

what must be in terms and conditions of DBA?

A

reasonable estimate of likely expenses
circumstances in which representatives payments, expenses or costs are payable
define what will count as succes

33
Q

caps with DBA for lawyers fee?

A

50%

34
Q

advantage of LAA (Legal Aid Agency) funding?

A

other side will face paying their own costs even if they win

thus more likely to make a settlement offer

35
Q

can a party with LAA be required to attempt mediation before litigation unless dispute is not suitable?

A

yes

36
Q

when will LAA cover reasonable costs of negotiation or mediation?

A

if it’s the most cost effective

37
Q

when will funding for trial be available with LAA?

A

when reasonable attempts to settle have been made

38
Q

what can happen if party refuses a reasonable offer with LAA?

A

lawyer must report

funding may be withdrawn

39
Q

LAA and part 36 offers?

A

LAA must be told of pt 36 offer

40
Q

what happens if an assisted party fails to beat a pt 36 offer?

A

have to pay def’s costs

case may need to be compromised to avoid such an effect

41
Q

disadvantage of LAA for client?

A

LAA statutory charge may reduce sum client receives

42
Q

when does cost management take place?

A

alongside case management

43
Q

ADR and cost management?

A

form H provides for estimates of costs of ADR

44
Q

can budget be revised as case goes on?

A

yes

45
Q

overall what will be needed in financial analysis and risk?

A 
damages realistically claimed in case
chance of success
comparative cost of lit and ADR
proportionate cost of each stage of lit
extent of current expenses
possibility that liability costs may shift
extent it is possible to manage risks

rdoc pt 1 (40 decks)

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