ch4 pt 1 Flashcards
lawyers and ADR?
must advise client to consider ADR in relation to cost management and costs budgeting
penalties that can occue for negative case managemenr orders?
sanctions and adverse costs orders
what can happen if ADR not properly handled?
professional negligence act against lawyer (maybe)
what are lawyers and parties required to do?
assist the court in the overriding objective
12 elements of the role of a lawyer?
advice at key lit stages on ADR alternatives to lit, objective info on benefits of ADR, advise on pre-action obligations with ADR, advise on obligations under overriding obj, ensure client is aware of penalties that may result from an unreasonable refusal to ADR, advise on costs and funding of ADR, if ADR selected get instructions on type, ADR not selected obj reasons and evidence, strengths and weaknesses for non-adj, advise on offers in non-adj, advise on drafting settlements
is there a positive duty on lawyers to persuade a client to use ADR?
no
what must a lawyer do?
advise on ADR obligation and options and potential penalties
role of a lawyer in adjudicative process?
agree procedural detail
why care must be taken by lawyer in adjudicative process?
limited options for appeal on binding decision
how might a lawyer advise on expert determination?
advise on terms expert will be appointed, definition of issues to be decided and material to be provided
role of a lawyer in non-adj ADR?
less formal, case analysis on strengths and weaknesses, identify and formulate offers, evaluate proposals, ensure terms are clear and comprehensive
what can happen if authority to settle is exceeded?
client may be bound due to the actual or ostensible authority to act on behalf of a client
what can happen if a lawyer reaches an agreement without authority?
agreement can be enforced against the client, client can bring a claim against lawyer for acting without authority
what has it been held in regards to settling without authority? is this good law?
settlement may be set aside, doubtful
what do lawyers and clients tend to do to protect themselves as regards authority to settle?
specifiy at the start of the negotiation where client is not present that any agreement shall be subject to client approval
what might a lawyer need to consider when advising on settlement? (7)
full list of issues to be settled, terms that might be acceptable on issues, reasonableness and comprehensiveness of the overall settlement, precise wording of terms, detail of terms, form to record settlement, matters relating to enforcement
what can happen if terms including an undertaking?
parties may be released from undertaking if circumstances change
what can happen if action has been stayed?
can be lifted
when can’t a settlement be challenged?
basis of something which the challenging party already knew
what is the overriding objective?
ensure a case is dealt with proportionatelt, saving expense and expeditiously
variation of a parties role in ADR compared to litigation?
from contractual agreement more control, need to explain certain things
what may be relevant to discuss with potential use of ADR? (10)
appropriateness of litigation, robustness of process, proposing ADR may mean weakness, ADR might undermine litigation, ADR can undermine control of a case, ADR might provide pressure to settle, ADR may be used a delaying tactic, limited knowledge of ADR process = concern, ADR may incur extra expense, ADR may be abused where a claim lacks merit
7 ways a lawyer might persuade opposing side into ADR?
identify and address concerns, propose specific benefits ADR might offer, offer info about ADR options, propose a limited or sample ADR, offer carrots, offer to pay reasonable ADR fees, enagage the assistance of the judge
5 things that can make a lawyer potentially liable?
failing to give sufficient advise on ADR, failing to give sufficient advise on merits of a case, acting beyond aithority, failing to advise on risks of unreasonably refusing ADR, giving inadequate advice on proposed settlements
when might it be difficult for a party to find a lawyer liable?
when adequate advice has been given
how might lawyer protect themselves from liability?
keep evidence that clear advice has been given on ADR
what can happen with confidentiality when a client raises a concern?
confidentiality may be waived, but would need to be waived by both parties
ways a client can complain?
through firms, chambers, Legal Ombudsman
when can a wasted costs order be made against the lawyer?
if client would have been likely to agree to ADR if properly advised
test for wasted costs order?
causal link between poot conduct and costs wasted
when might you get an adverse costs order?
unreasonable failure to engagae in ADR
can a lawyer get immunity from professional negligence?
no
when may a lawyer be liable for professional negligence?
advise client to accept too low a sum, fails to investigate=client recovers less than should, faills to pass info to client, fails to make client aware of unusual terms, undertakes responsibilities in an agreement but is responsible for breach
when will a lawyer not tend to be liable? (4)
purely due to lack of success, or failing to advice on commercial risks if client should have known, not in pursuing a weak case, failing to advise on things such as potential tax consequences (tangential)
when might a client be unlikely to succeed in professional negligence?
barrister gives reasonable advice, consent order made
