ch 9 Flashcards
consequence of failing to act reasonably and proportionately?
court willing to penalize their conduct by making an adverse costs order
when might court strike out a case?
Binns v Financial group-refused ADR to secure costs advantage
means by which court encourages ADR?
judicial encouragment pre-action protocols court guides court's inquiry at 1st case management conference court willing to grant a stay for ADR other case management orders establishment of court mediation schemes willing to make adverse costs order if anti-ADR
how will courts encourgae ADR through judicial intervention?
judges prepared to question on consideration of ADR
put parties under continuing duty to consider ADR
can court compel parties to use ADR?
no only encourage
nor force settlement if they do use ADR
decision of Dyson LJ in Halsey v Milton keynes?
compulsion of ADR = unacceptable constraint
jackson review of costs opinion on mediation?
never compulsory just ought to be encourgaed
mann v mann?
court refused to give effect to an agreement to force mediation
WRONG
what can an ungley order do?
encourage parties to undertake ADR
is mandatory order to undertake in non-adj a breach of art 6?
no
strongest form of order to encourage ADR?
order made by commercial court
what does mandatory consideration of mediation involve?
engage with a mediator with a view to settle
another way art 6 won’t be infringed?
parties waive their right to a trial process e.g. contractually agree to ADR
overriding objective of CPR?
enable a court to deal with a case justly and at proportionate costs
includes encouraging ADR
can court direct parties to consider ADR at case management conference or pre-trial review?
yes
other order court can make except commercial court or ungley?
jordan ADR order
what happens if court considers reasons refusing to ADR weak?
direct parties to attend a case management conference to consider ADR
obligation on parties if a stay is granted?
keep court informed on progress of ADR
What happens if settlement reached during ADR?
dispose of case by way of consent roder or tomlin order
position of courts if parties have agreed a particular method to resolve disputes?
has a discretionary power to stay proceedings brought in breach of agreement
when can court decline to enforce agreement about ADR?
unclear and ambiguous
decision of wah v grant thorton international ltd?
court needs:
commitement to commence process
means of discerning steps party was required to take
process clearly defined
factors court may consider when enforcing contract?
extent parties have complied with pre-act protocol
if dispute is suitable for determination
costs of ADR compared to lit
if a stay would accord with overriding objective
when party can’t get an order for damages for breach of ADR clause?
if the party could have sought an order for their payment between the parties
