!!!! Dispute resolution Flashcards
key stages when settlement considerations are most to the fore are
- before the issue of proceedings
- after the statements of case have been served
- after exchange of witness statements
- after disclosure has taken place
- in the run-up to trial
Part 36 of the Civil Procedure Rules
A form of offer used to settle all or part of a dispute between parties in civil litigation
is an exploratory offer made using part 36 or not?
Not- this is an informal offer that is used to gauge the opponents approach and decide what a formal offer should be/what would be accepted. part 36 offers carry costs consequences
in regards to an offer- what does a solicitor need to make their client understand?
- whether an offer is made
- how an offer is made
- client fully understands the liability for the costs implications of making an offer
‘without prejudice rule’
- early settlement discussions are likely to be made ‘without prejudice’
- can explore the possibility of a settlement
what conduct may the courts take into account when considering a costs order?
- The conduct of the parties before proceedings were commenced, including the extent to which they complied with the Practice Direction—Pre-Action Conduct and Protocols
- as well as their conduct during the proceedings.
by when does the defendant have to pay the costs as ordered
- within 14 days of the order as long as they are told how much they owe
when do you need to file a costs budget? and do you need to file one as a litigant in person?
- not later than 21 days before the first case management conference
- no, only people with legal representation need to do it
Where the amount of costs is to be assessed on the standard basis, how does the court deal with costs?
- the court will only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred
how are costs dealt with when assessed on an indemnity basis?
the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party
if the judge orders that there will be no order as to costs after the hearing of an application for an interim payment, what does that mean?
- that each party will bear its own costs in the application whatever the outcome at trial
how costs are dealt with on the small claims track
costs are limited to fixed commencement costs and third-party costs such as court fees and experts fees
how costs are dealt with on the fast track
- before oct 1st 2023-legal costs and disbursements are recoverable from the other party and summarily assessed
- fixed costs apply after oct 1st 2023
how costs are dealt with in a multi track trial
recoverable from the other party but subject to detailed assessment
if there is a clause stating that arbitration must be attempted if there is a dispute- what would happen if proceedings are issued?
- a stay of proceedings is likely to be granted
- costs are likely to be awarded on an indemnity basis
if mediation is used- who is liable for the costs?
- both the parties equally
- jointly and severally liable to the mediator for it
What is the meaning of ENE (early neutral evaluation)?
A neutral party, usually with specialist experience, will consider the evidence and provide a non-binding view of the case which may help the parties to narrow the issues and settle
when refusing someones proposal for ADR, how should you respond
Showing that Reasonable consideration of the use of ADR has taken place and sufficient reasons should be given as to why it has been rejected to minimise the possibility of costs sanctions
mediation- advantages and disadvantages
Advantages:
- Highly collaborative, encouraging parties to reach a mutually agreeable solution.
- Preserves relationships by focusing on communication and understanding.
- Flexible and can be tailored to specific needs.
Relatively inexpensive compared to litigation.
Disadvantages:
- May not result in a binding decision, depending on the agreement.
- Success heavily relies on the mediator’s skills and ability to facilitate communication.
- Can be time-consuming if parties struggle to reach consensus.
arbitration advantages and disadvantages
Advantages:
- Provides a binding decision, similar to a court ruling.
- Can be faster than litigation.
- Allows parties to choose an expert arbitrator with relevant knowledge.
- Confidentiality of the proceedings.
Disadvantages:
- Less flexibility compared to mediation, as the arbitrator makes the final decision.
- May be more costly than mediation.
- Limited opportunity for appeal depending on the arbitration rules.
if you’re dealing with a construction dispute- which type of dispute resolution needs to be used?
- adjudication
under what circumstances can an arbitrators award be appealed?
- on the grounds of a serious irregularity
- an error on a point of law
- both are applied restrictively
if your client wants to bring a claim for PI but the limitation period expires in 2 weeks time- what should you do?
- issue proceedings within the limitation period and apply to the court for a stay of proceedings
if one party suggests ADR but the other party is silent in response to this- what will the likely circumstances be?
That a party’s silence in response to an invitation to participate in ADR might be considered unreasonable by the court and may lead to the court ordering the defendant to pay additional costs
what should be included in the letter of claim?
- description of the claimants injuries
- reason why fault is alleged
- details of loss of earnings and other financial losses
- clear summary of the facts
when does the limitation period expire if a claimant is under 18 at the time of an injury?
- 3 years after 18th bday
limitation period for breach of contract
6 years from the date on which the cause of action accrued
limitation period for PI
3 years from date on which the cause of action accrued
what do you need to do before the limitation period expires?
the court needs to have received the claim form
which court should a claim be commenced in?- county
- £100k or less
- PI claims for £50k or less
£100k or more can be either high or county
which court should a claim be commenced in?-high
- more than £100k/ more than £50k PI
WHERE THE CASE HAS COMPLEX FACTS
OR THE OUTCOME OF THE CASE IS IN THE PUBLIC INTEREST
CONSEQUENCES OF REJECTING A PART 36 OFFER
- Interest on the judgment sum at up to 10% above base rate
- Indemnity costs (rather than standard basis costs) from the relevant date
- Additional interest on those costs at up to 10% above base rate
- An additional sum of up to £75,000 calculated as follows:
- For judgments up to £500,000: 10% of the first £500,000
- For judgments above £500,000: 10% of the first £500,000 plus 5% of any amount above that
3 types of money enforcement orders
- charging order on property
- third party debt order
- attachment of earnings
charging order on property description
A charging order allows your client to secure the debt against the debtor’s property. This means that if the debtor sells or remortgages the property, your client will be entitled to receive the amount owed from the proceeds, once the property is sold.
third party debt order description
A third party debt order allows your client to apply to the court to freeze and take money directly from the debtor’s bank account or any other third-party sources (such as payments from a business partner or other entities owing the debtor money).
This can be used to freeze the debtor’s bank accounts, allowing the creditor to recover funds directly from the account.
The court order would direct the bank or third party to pay money directly to your client, which can be a fast way of recovering some or all of the debt, assuming the debtor has accessible funds.
attachment of earnings description
An attachment of earnings order allows the court to order the debtor’s employer to deduct a portion of the debtor’s wages directly from their salary, which is then paid to your client. This is generally used when the debtor is employed, but can also be applied if the debtor starts earning income in the future.
The amount deducted is a percentage of the debtor’s earnings, depending on how much they earn. If the debtor is not currently employed, this option will not be useful immediately, but it can be pursued if they begin working again.
pre-action protocol for professional negligence
- Send detailed Letter of Claim including:
- Chronological summary of facts
- Allegations of negligence
- Causation and loss details
- Supporting documents
- Expert evidence if obtained
- Allow 3 months for Letter of Response
- Consider Preliminary Notice before detailed Letter of Claim
- Engage in pre-action disclosure if necessary
- Consider ADR options
consequences of non-compliance with protocol for prof neg
- Cost sanctions
- Stay of proceedings
- Court criticism
- Potential strike-out
- Damage to credibility before court
