Civil Procedures- General Matters

Question 1

What is the overriding objective under rule 1.1

Answer 1

1.1 (1) :
“the rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.”

Question 2

What does “dealing with a case justly and at a proportionate cost” include under 1.1 (2)?

Answer 2

a. ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence
b. saving expense
c. dealing with the case in ways which are proportionate:
i. to the amount of money involved
ii. to the importance of the case.
iii. to the complexity of the issues; and
iv. to the financial position of each party;
d. ensuring that it is dealt with expeditiously and fairly;
e. allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
f. enforcing compliance with rules, practice directions and orders.

Question 3

When must the court seek to give effect to the overriding objective under 1.2?

Answer 3

when it :
a. exercises any power given to it by the rules; or
b. interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2

Question 4

What are the parties required to do under 1.3?

Answer 4

The parties are required to help the court to further the overriding objective.

Question 5

What must the court do in order to further the overriding objective under 1.4?

Answer 5

Actively manage cases

Question 6

Under 1.4 what does ‘active case management’ include?

Answer 6

1.4 (2):
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.

Question 7

name one factor in which the court should have regard to in deciding the amount of costs?

Answer 7

efforts made by the parties- see case of Hertsmere Primary Care trust v Rabindra-Anandh [2005]

Question 8

true or false:
co-operation requires a party to remind their opponent to comply with a procedural time-limit?

Answer 8

false:
co-operation does not require a party to remind their opponent to comply with a procedural time limit- see case of Higgins v ERC Accountants & Business Advisers Ltd [2017]

Question 9

what does active case management do in relation to the parties?

Answer 9

help parties to settle whole or part of a case.

Question 10

true or false:
the courts should also consider its discretion to stay claims which are brought in breach of agreement between the parties to attempt to resolve dispute by reference to expert determination.

Answer 10

true

Question 11

on which party should the burden lie on when there is a decision to stay proceedings?

Answer 11

the party resisting the stay to persuade the court that there’s a good reason for no stay to be implied.

Question 12

name the 10 reasons why a party may be motivated to use ADR?

Answer 12

lower costs
speed of settlement
choice of forum
control of process
flexibility of process
confidentiality
wider range of issues/outcomes may be considered
shared future interests may be protected
use of a problem-solving approach
risk management

Question 13

what are the criteria for selecting an ADR option?

Answer 13

how important is it to lower costs
how important fast resolution is
how much control does the party want?
what are the main objectives of the party?
is a future relationship important?
is the view of an expert important to key issues?
would neutral assistance be valuable

Question 14

name any factor where ADR isn’t appropriate for a specific dispute

Answer 14

the need for a precedent
the importance of a court order
the relevance of interim orders.
the importance of evidential rules
the strength of a case
the complexity of the case
high levels of animosity
power imbalance
quasi-criminal allegations
having a day in court
enforcement may be an issue.

Question 15

true or false:
lawyers and parties are required to assist the court in furthering the over-riding objective which includes several provisions relevant to the appropriate use of ADR

Answer 15

True

Question 16

true or false:
there is a positive duty to assist the court in saving expense, ensuring that a case is dealt with expeditiously and fairly and in a way that’s proportionate to the issues, the importance of the case, the amount of money involved and the financial position of each party

Answer 16

true

Question 17

what type of negotiations should estimated costs for ADR cover?
and what does this include

Answer 17

settlement negotiations including a part 36 and other offers and advising client as well as drafting a settlement agreement or a Tomlin order.

Question 18

name the types of duties in which a lawyer has when advising on ADR?

Answer 18

ensuring that client is sufficiently aware of ADR alternatives to litigation
providing objective information on relevant ADR options (inc. potential benefits and drawbacks or giving a client sufficient guidance on where and how to get info
advising client on pre-action obligations relating to the consideration of ADR
advising client on obligations under overriding objective in relation to ADR
ensuring that client is aware of penalties that may result from unreasonable refusal to use ADR
giving appropriate advice on funding and costs in relation to ADR.
if ADR is selected, they must give clear instructions on form of ADR to be used/ objectives to be achieved.
if ADR isn’t selected to ensure that objective reasons are identified and sufficient evidence of those reasons retained.
if it’s appropriate in assisting in the selecting of an independent 3rd party to conduct an ADR process.
advising on the strengths and weaknesses of a case as part of assessing a case for use of non-adj ADR.
considering and advising on offers in relation to non-adj ADR
advising on and drafting terms of settlement.

Question 19

what must the judges do to encourage ADR

Answer 19

Judges are prepared to question parties as to the steps taken to attempt settlement and avoid litigation and will encourage them to use ADR.

Question 20

where bilateral negotiations fail but mediation would be appropriate, what do both parties have the right to

Answer 20

they have an obligation to attempt it

Question 21

if 1 party frustrates process by delaying and dragging their feet for no good reason, what are the court are likely to do

Answer 21

court is likely to punish behaviour by penalising that party in costs.

Question 22

what are the parties obliged to do?

Answer 22

behave reasonably and make reasonable offers to settle and respond properly to part 36 offers made by other side
obliged to conduct litigation collaboratively and to engage constructively in a settlement process.

Question 23

what can the court do if the parties fail to conduct their obligations?

Answer 23

can use its powers to penalize them for their conduct.

Question 24

what does the case of Halsey v Milton Keynes General NHS Trust say in relation to costs and who has the burden to prove this?

Answer 24

general rule on costs follow the event shouldn’t be departed from unless shown that the successful party acted unreasonably in refusing to agree to ADR.
unsuccessful party bears this burden of proving this.

Question 25

name the circumstances the court will consider when considering whether the winning party acted unreasonably

Answer 25

nature of dispute
merits of case
extent to which other settlement methods have been attempted
whether costs of ADR process would be disproportionately high
whether any delay in setting up and attending ADR would have been prejudicial
whether ADR process had a reasonable prospect of success

Question 26

true or false:
halsey factors also apply where C pursues proceedings rather than consider ADR though a compulsory scheme established by financial services authority

Answer 26

true

Question 27

true or false:
courts will refuse to allow a claim to proceed if action is brought only to recover costs in circumstances where full compensation could be obtained under ADR scheme and a claim could be struck out under 3.4

Answer 27

true

Question 28

what was held in the case of Vale of Glamorgan Council v Roberts in relation to the claimant’s failure to initiate ADR processes

Answer 28

a party who fails to comply with the requirements of the pre-action protocols and practice direction pre-action conduct and protocols to a significant extent is likely to find that their failure to do so is penalized in costs.

Question 29

true or false:
a different order is likely to be made if successful party deliberately exaggerated amount of claim and failed to initiate ADR

Answer 29

true

Question 30

what did the case of PGF II SA v OMFS Co 1 Ltd in relation to silence in the face of an invitation to use ADR

Answer 30

silence in face of an invitation to participate in ADR was unreasonable regardless of whether there was a good reason for refusal to engage in ADR

Question 31

true or false:
practice direction pre-action conduct and protocols and the pre-action protocols also provide that a party’s silence in response to an invitation to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional costs.

Answer 31

true

Question 32

true or false:
silence in face of an offer to mediate attracts a costs sanction

Answer 32

false:
it doesn’t

Question 33

name the steps in which a party facing with a request to engage in ADR but who believes that they have reasonable grounds for refusing to participate in an ADR process at that stage of the proceedings should consider to avoid a sanction

Answer 33

don’t ignore offer to engage in ADR
respond promptly in writing and give full and clear reasons why ADR isn’t appropriate at the stage of dispute or proceedings
if there is a lack of evidence or info, party must talk with other party as to whether that evidence or info can be obtained during ADR process in advance of process.
letters replying to requests to engage in ADR should be written with care.

Question 34

which case overturned the case of Halsey v Milton Keynes General NHS Trust

Answer 34

Churchill v Merthyr Tydfil CBC [2023]

Question 35

what does the case of Churchill say in relation to ADR?

Answer 35

court could lawfully stay proceedings for or order the parties to engage in an ADR process subject to provisos that the order made didn’t impair the very essence of the claimant’s right to proceed to a judicial hearing and was proportionate to achieving the legitimate aim of settling dispute, fairly, quickly and at reasonable costs

Question 36

true or false:
the court can order a non-court based dispute resolution

Answer 36

true

Question 37

what are the following factors that the bar council state that were relevant to exercise of court’s discretion

Answer 37

form of ADR being considered
whether parties were legally advised/ represented
was ADR likely to be effective or appropriate without such advice or representation
whether it was made clear to parties that if they didn’t settle they were free to pursue their claim or defence.
urgency of case and the reasonableness of delay caused by ADR
whether that delay would vitiate the claim or give rise to or exacerbate any limitation issue
costs of ADR both in absolute terms and relative to parties’ resources and value of claim
whether there was any realistic prospect of claim being resolved through ADR
whether there was a significant imbalance in parties’ levels of resource bargaining power or sophistication
reasons given by a party for not wishing to mediate and
the reasonableness and proportionality of the sanction in the event that a party declined ADR in face of an order of the court.

Question 38

what are the potential drawbacks of using ADR at too early a stage?

Answer 38

time and money may be wasted if ADR process isn’t successful
unsuccessful ADR process may exacerbate dispute between parties
may be difficult to evaluate case properly
ADR process may be used tactically rather than as a genuine attempt to settle

Question 39

true or false:
obligations to consider use of ADR at pre-action stage which need to be taken seriously as a failure to do so may not be met with an adverse costs order

Answer 39

false:
they may be met with an adverse costs order.

Question 40

true or false:
each party should consider and make/respond to a proposal for use of appropriate ADR at the pre-issue stage or record reasons why ADR wasn’t appropriate

Answer 40

true

Question 41

true or false:
for a directions questionnaire in fast track and multi-track, it makes it clear that the court will want to know what steps have been taken in relation to settling the case with a legal representative asked to confirm that ADR options and the possibility of costs sanctions have been explained to the client

Answer 41

true