ch 8 Flashcards
will a court have powers to support ADR at pre-action stage?
no
how can a judge support use of ADR prior to proceedings?
make orders that support ADR
such as order disclosure of documents that would help facilitate ADR
can a pt 36 offer be made before issue of proceedings?
yes
can making a pt 36 offer alone prior to proceedings count as an attempt to ADR?
no
but can be used as a larger argument in relation to sanctions
consequence of no proceedings being issued?
court cannot make a consent order
what happens in non-adj when settlement is reached before proceedings?
recorded in contract
new case to enforce contract
what happens in adj ADR when settlement is reached?
parties will have agreed prior to ADR
this can enforce decision
if a settlement is reached before proceedings will the court have power as to costs?
no
what happens if there is no terms in settlement as to costs?
each party bears their own cost
when can proceedings be bought for assessment of costs (prior to lit)?
agreement on all issues, who should pay costs and recorded in writing save the amount has not been agreed
when should cost only proceedings be issued?
when parties have made a bona fide attempt to agree costs
what are the courts power if proceedings are later issued?
can make an order in relation to costs incurred before proceedings have begun
what can court take into account when making an order about costs prior litigation?
offers to settle
offers that ought to have been accepted
conduct of parties pre-action
core requirements for pre-action conduct?
- exchange of letters, claimant provides details of claim, basis it is made, summary of facts, what they want
- def replies whether confirming claim, if not reason why and explanation of facts
- disclosure of key docs (penalized if don’t comply)
consequence of a party frustrating use of ADR by exaggerating a clam?
penalized in costs
