ch4 pt 1

Question 1

lawyers and ADR?

Answer 1

must advise client to consider ADR in relation to cost management and costs budgeting

Question 2

penalties that can occue for negative case managemenr orders?

Answer 2

sanctions and adverse costs orders

Question 3

what can happen if ADR not properly handled?

Answer 3

professional negligence act against lawyer (maybe)

Question 4

what are lawyers and parties required to do?

Answer 4

assist the court in the overriding objective

Question 5

12 elements of the role of a lawyer?

Answer 5

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

Question 6

is there a positive duty on lawyers to persuade a client to use ADR?

Answer 6

no

Question 7

what must a lawyer do?

Answer 7

advise on ADR obligation and options and potential penalties

Question 8

role of a lawyer in adjudicative process?

Answer 8

agree procedural detail

Question 9

why care must be taken by lawyer in adjudicative process?

Answer 9

limited options for appeal on binding decision

Question 10

how might a lawyer advise on expert determination?

Answer 10

advise on terms expert will be appointed, definition of issues to be decided and material to be provided

Question 11

role of a lawyer in non-adj ADR?

Answer 11

less formal, case analysis on strengths and weaknesses, identify and formulate offers, evaluate proposals, ensure terms are clear and comprehensive

Question 12

what can happen if authority to settle is exceeded?

Answer 12

client may be bound due to the actual or ostensible authority to act on behalf of a client

Question 13

what can happen if a lawyer reaches an agreement without authority?

Answer 13

agreement can be enforced against the client, client can bring a claim against lawyer for acting without authority

Question 14

what has it been held in regards to settling without authority? is this good law?

Answer 14

settlement may be set aside, doubtful

Question 15

what do lawyers and clients tend to do to protect themselves as regards authority to settle?

Answer 15

specifiy at the start of the negotiation where client is not present that any agreement shall be subject to client approval

Question 16

what might a lawyer need to consider when advising on settlement? (7)

Answer 16

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

Question 17

what can happen if terms including an undertaking?

Answer 17

parties may be released from undertaking if circumstances change

Question 18

what can happen if action has been stayed?

Answer 18

can be lifted

Question 19

when can’t a settlement be challenged?

Answer 19

basis of something which the challenging party already knew

Question 20

what is the overriding objective?

Answer 20

ensure a case is dealt with proportionatelt, saving expense and expeditiously

Question 21

variation of a parties role in ADR compared to litigation?

Answer 21

from contractual agreement more control, need to explain certain things

Question 22

what may be relevant to discuss with potential use of ADR? (10)

Answer 22

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

Question 23

7 ways a lawyer might persuade opposing side into ADR?

Answer 23

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

Question 24

5 things that can make a lawyer potentially liable?

Answer 24

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

Question 25

when might it be difficult for a party to find a lawyer liable?

Answer 25

when adequate advice has been given

Question 26

how might lawyer protect themselves from liability?

Answer 26

keep evidence that clear advice has been given on ADR

Question 27

what can happen with confidentiality when a client raises a concern?

Answer 27

confidentiality may be waived, but would need to be waived by both parties

Question 28

ways a client can complain?

Answer 28

through firms, chambers, Legal Ombudsman

Question 29

when can a wasted costs order be made against the lawyer?

Answer 29

if client would have been likely to agree to ADR if properly advised

Question 30

test for wasted costs order?

Answer 30

causal link between poot conduct and costs wasted

Question 31

when might you get an adverse costs order?

Answer 31

unreasonable failure to engagae in ADR

Question 32

can a lawyer get immunity from professional negligence?

Answer 32

no

Question 33

when may a lawyer be liable for professional negligence?

Answer 33

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

Question 34

when will a lawyer not tend to be liable? (4)

Answer 34

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)

Question 35

when might a client be unlikely to succeed in professional negligence?

Answer 35

barrister gives reasonable advice, consent order made