ch 9

Question 1

consequence of failing to act reasonably and proportionately?

Answer 1

court willing to penalize their conduct by making an adverse costs order

Question 2

when might court strike out a case?

Answer 2

Binns v Financial group-refused ADR to secure costs advantage

Question 3

means by which court encourages ADR?

Answer 3

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

Question 4

how will courts encourgae ADR through judicial intervention?

Answer 4

judges prepared to question on consideration of ADR

put parties under continuing duty to consider ADR

Question 5

can court compel parties to use ADR?

Answer 5

no only encourage

nor force settlement if they do use ADR

Question 6

decision of Dyson LJ in Halsey v Milton keynes?

Answer 6

compulsion of ADR = unacceptable constraint

Question 7

jackson review of costs opinion on mediation?

Answer 7

never compulsory just ought to be encourgaed

Question 8

mann v mann?

Answer 8

court refused to give effect to an agreement to force mediation
WRONG

Question 9

what can an ungley order do?

Answer 9

encourage parties to undertake ADR

Question 10

is mandatory order to undertake in non-adj a breach of art 6?

Answer 10

no

Question 11

strongest form of order to encourage ADR?

Answer 11

order made by commercial court

Question 12

what does mandatory consideration of mediation involve?

Answer 12

engage with a mediator with a view to settle

Question 13

another way art 6 won’t be infringed?

Answer 13

parties waive their right to a trial process e.g. contractually agree to ADR

Question 14

overriding objective of CPR?

Answer 14

enable a court to deal with a case justly and at proportionate costs
includes encouraging ADR

Question 15

can court direct parties to consider ADR at case management conference or pre-trial review?

Answer 15

yes

Question 16

other order court can make except commercial court or ungley?

Answer 16

jordan ADR order

Question 17

what happens if court considers reasons refusing to ADR weak?

Answer 17

direct parties to attend a case management conference to consider ADR

Question 18

obligation on parties if a stay is granted?

Answer 18

keep court informed on progress of ADR

Question 19

What happens if settlement reached during ADR?

Answer 19

dispose of case by way of consent roder or tomlin order

Question 20

position of courts if parties have agreed a particular method to resolve disputes?

Answer 20

has a discretionary power to stay proceedings brought in breach of agreement

Question 21

when can court decline to enforce agreement about ADR?

Answer 21

unclear and ambiguous

Question 22

decision of wah v grant thorton international ltd?

Answer 22

court needs:
commitement to commence process
means of discerning steps party was required to take
process clearly defined

Question 23

factors court may consider when enforcing contract?

Answer 23

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

Question 24

when party can’t get an order for damages for breach of ADR clause?

Answer 24

if the party could have sought an order for their payment between the parties