!!!! Dispute resolution Flashcards
key stages when settlement considerations are most likely to be considered
- 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
