Dispute Resolution

Question 1

the courts used to strongly encourage parties to use ADR, now they can order a stay in proceedings and order the parties to engage in ADR - which case said this?

Answer 1

Churchill v Merthyr Tydfil CBC

Question 2

in a DQ, sols have to confirm they have discussed what with their client in regards to ADR?

Answer 2

(a) the need to try to settle;
(b) the options available; and
(c) the possibility of costs sanctions if they refuse to attempt to settle.

Question 3

in what circumstances would ADR not be appropriate?

Answer 3

where a court needs to make a ruling on a point of law or where an injunction is required

Question 4

two parties agreed to arbitrate in their original contract of business. one party issues court proceedings. how should the other respond?

Answer 4

the other party should acknowledge service and, if they wish to enforce the arbitration agreement, apply to the court
to stay (suspend) the proceedings

Question 5

what are the two main disadvantages of mediation?

Answer 5

no duty of disclosure

no automatic enforcement - even if an agreement is reached, it is not automatically binding as the client cannot enforce
this like a court judgment.

However, if the parties do agree to terms suggested as a result of mediation, they have entered into a contract. If one of the parties does not carry out that contract, they may be sued for the breach.

Question 6

what is the process of arbitration governed by?

Answer 6

the arbitration act

but only if the agreement to arbitrate is in writing

Question 7

what is the main disadvantage of arbitration?

Answer 7

some remedies aren’t available e.g. injunction

Question 8

how is an arbitration award enforced?

Answer 8

Once a decision has been reached, the winning party to an arbitration can apply to the High Court under s 66 of the Arbitration Act 1996 for permission to enforce the arbitration award as if it were a court judgment.

Question 9

which judges hear which cases?

Answer 9

High Court and County Court - DJs = most interim applications + amount involved in a case is 25k

> 25k = circuit judges County Court + High Court judges in High Court

Question 10

what are the limitation periods

Answer 10

contract / tort = 6 years (from the date of cause of action e.g breach or negligent act)

personal injury = 3 years (date of the cause of action or the date of knowledge of the person injured, except for children
where the time limit does not start to run until their 18th birthday)

negligence where the damage is latent (hidden) at the date when the cause of action accrued =
* six years from the date of the cause of action; or
* three years from the date of knowledge of the damage, whichever is later; but
* no later than 15 years after the date of the negligent act or omission.

NOTE - contract claims -> contract in dispute may have stipulated an alternative limitation period

the court has the discretion to extend limitation periods but will only do so in exceptional circumstances

Question 11

what safeguards are in place for children and protected parties (a person who is incapable of managing their own affairs because of a mental disorder as
defined by the Mental Capacity Act 2005)?

Answer 11

1. must have a litigation friend to act on their behalf.
   - the litigation friend must be able to fairly and competently conduct proceedings on behalf of the party and have no adverse interest
2. any settlement reached involving a child or a protected party will only be valid if approved by the court

Question 12

what is the purpose of the PD on PAC + pre-action protocols

Answer 12

• initiate and increase pre- action contact
  between the parties
• encourage better and earlier exchange of information
• with a view to encouraging settlement and making the litigation process run more smoothly if it does go to court

Question 13

list some of the principles of the PDPAC and pre-action protocols:

Answer 13

1. litigation should be a last resort (think of ADR)
2. parties should exchange sufficient information in order to:
   - understand each other’s position;
   - make decisions about how to proceed;
   - try to settle the issues without proceedings + consider ADR
   - support the efficient management of proceedings
   - reduce the costs of resolving the dispute
3. steps taken would usually include:
   (a) the claimant writing to the defendant with concise details of the claim;
   (b) the defendant responding within a reasonable time; and
   (c) the parties disclosing key documents relevant to the issues in dispute.
4. where a dispute has not been resolved after the parties have followed the Practice Direction, the parties should at least seek to narrow the issues in dispute before the claimant issues proceedings.
5. If a dispute proceeds to litigation, the court will expect the parties to have complied with the Practice Direction. A party MAY be sanctioned for failing to do so

(watch out for SBAQs on this that say the court WILL sanction)

Question 14

The PDPAC expressly states that only ___________and __________ steps should be taken by the parties to try and resolve the matter and _______ incurred should also be proportionate.

Answer 14

reasonable and proportionate

(watch out for a SBAQ stating all steps should be taken - only reasonable and proportionate ones need to be taken)

and costs incurred should also be proportionate

Question 15

the PDPAC stipulates a defendant should respond to the claimants correspondence within a reasonable time frame, what is considered a reasonable time frame?

and what should be included within the response?

Answer 15

• 14 days in a straightforward claim
• three months maximum in a complex case – include confirmation of whether all or part of the claim is accepted, and if not the reasons why
• any details of a counter claim
• key documents relevant to the issues in dispute should also be disclosed.

Question 16

where a party has failed to comply with the PDPAC what penalties might the court impose on them?

Answer 16

(a) that the party at fault pays some or all of their opponent’s costs (perhaps on the penalty, indemnity basis);

(b) depriving a claimant who is at fault of some or all of the interest they may subsequently be awarded on any damages recovered; or

(c) requiring a defendant who is at fault to pay interest on any damages awarded to the claimant at a rate of up to 10% per annum above the base rate.

Question 17

explain how the Pre-Action Protocols on debt claims differs from the normal PDPAC + protocols

Answer 17

cannot be used for business to business disputes
details of the debt and any additional charges i.e interest must be provided
usually between individuals so the time frame for a response goes up to 30 days

Question 18

explain how the Pre-Action Protocols for Negligence differ from the normal PDPAC + protocols

Answer 18

the claimant should detail the claim in writing and send to the professional (the Preliminary Notice)
the professional should notify their insurers immediately
acknowledge the preliminary notice in writing within 21 days of receipt
claimant then sends Letter of Claim
The professional must acknowledge this in writing within 21 days of receipt.
Thereafter, they have three months to investigate and to respond.
Letter of Response from the professional admitting or rejecting and including any offer of settlement
if negotiate = aim to resolve in 6 months from date of acknowledgment
if going to court - final stocktake to narrow down the issues