Dispute Resolution

Question 1

What is the overriding objective?

Answer 1

1.1 - Dealing with cases justly and at proportionate cost

Question 2

How does S52(2)(a) of the Courts and Legal Services Act 1990 define a CFA?

Answer 2

‘an agreement with a person providing advocacy or litigation services
which provides for his fees and expenses, or any part of them, to be payable only in specified
circumstances’

Question 3

What are the requirements for a valid CFA under ss 58 and 58A of the Courts and Legal
Services Act 1990?

Answer 3

(a) may be entered into in relation to any civil litigation matter, except family proceedings;
(b) must be in writing; and
(c) must state the percentage by which the amount of the fee that would be payable if it were
not a CFA is to be increased (the success fee). (additional - fee cannot be more than 100%)

Question 4

If a client has a CFA and wins the case a success fee is usually payable, can this be recovered from the other side?

Answer 4

No

Question 5

Name advantages and disadvantages of arbitration as a form of ADR

Answer 5

Advantages -

• may be quicker
• less formal and private
• solutions reached are often practical
• decision is binding (can apply to High Court as if it was a court judgment (AA Act 1966 S66)

Disadvantages

Certain remedies such as injunctions are not available

may not receive depth of investigation that a court can provide

not always cheaper

Question 6

What does Rule 1.4(1)(2)(e) say about ADR?

Answer 6

It encourages the parties to use an alternative dispute resolution procedure if the court considers that
appropriate and facilitating the use of such procedure.

Question 7

What ADR process does this describe?
A third party receives written statements from both parties. Following that, the mediator will discusses the case with
the parties on a WP basis. He can then move the parties towards
constructive solutions to the problem.

Answer 7

Mediation - remember do not have to be in the same place, mediation can take place by telephone.

Question 8

Describe ‘Med-arb’

Answer 8

Parties agree to submit their dispute to mediation and, if this does not work they will refer to arbitration.

Question 9

Describe ‘mini trial’ or ‘structured settlement procedure’

Answer 9

Parties appoint a neutral siting as a chairman of a tribunal composed of himself and senior reps of both parties. They will then hear/read the cases, negotiate with the help of an independent arbitrator.

Question 10

Describe ‘Expert Appraisal’

Answer 10

Parties refer dispute to expert in a disputed field. His opinion is not binding but may influence negotiations.

Question 11

What method of ADR is this?

A former judge or senior counsel give a quick prelim view on the legal position havign heard from the parties. It is an agreement between the parties whether this will be binding.

Answer 11

Judicial appraisal

Question 12

What is the difference between expert appraisal and expert determination?

Answer 12

Parties agree expert to decide case and agree to accept decision and can sue in breach of contract if they do not.

Question 13

Difference between expert determination and arbitration?

Answer 13

Cannot be enforced as a court order but may be enforced in breach of contract. Unlike arbitrator expert may be sued in negligence.

Question 14

Describe final offer arbitration

Answer 14

The parties can instruct their chosen neutral that they will both make an offer of the terms on
which they will settle, and that he must choose one of those two offers and no other solution.
62 Civil Litigation
Neither party can afford to make an unrealistic offer, because that will mean that the neutral
will choose the opponent’s offer. Thus, at least in theory, the offers are likely to be realistic.

Question 15

Describe Early Neutral Evaluation

Answer 15

this method allows the parties to instruct their chosen neutral to make a
preliminary assessment of the facts at an early stage in the dispute. Normally the parties
submit written case summaries and supporting documents. The evaluator then makes a
recommendation. This very often helps the parties to negotiate a settlement (or move to
another ADR method), avoiding the expense of litigation. Rule 3.1(2)(m) of the CPR 1998
provides that the court may take any step or make any order for the purpose of managing the
case and furthering the overriding objective (see 1.1.1), including hearing an early neutral
evaluation with the aim of helping the parties to settle the case

Question 16

How is a Damamages Based Agreement (DBA) described in S58AA(3)(a) of the CLSA 1990

Answer 16

an agreement between a person providing advocacy services, litigation services or claims management
services and the recipient of those services which provides that—

(i) the recipient is to make a payment to the person providing the services if the recipient obtains a
specified financial benefit in connection with the matter in relation to which the services are provided, and

(ii) the amount of that payment is to be determined by reference to the amount of the financial
benefit obtained.

Question 17

What are the requirements for a valid DBA contained in S58AA(4) of the CLSA 1990

Answer 17

(a) must be in writing;
(b) must not provide for a payment above a prescribed amount or for a payment above an amount calculated in a prescribed manner; (cannot be more than 50% inc VAT and counsels fees of sums recovered of sums recovered, does not inc disbursements)

(c) must comply with such other requirements as to its terms and conditions as are
prescribed; and
Considerations at the First Interview Including Funding the Claim 21

(d) must be made only after the person providing services under the agreement has
provided prescribed information.

Question 18

What did the Court of Appeal say in relation to before the event insurance (BEI) in Sarwar v Alam [2001] EWCA Civ 1401

Answer 18

In our judgment, proper modern practice dictates that a solicitor should normally invite a client to
bring to the first interview any relevant motor insurance policy, any household insurance policy and
any stand alone before-the-event insurance policy belonging to the client and/or any spouse or partner
living in the same household as the client.

Question 19

What is the practical difference between a specified and unspecified claim?

Answer 19

A specified claim is for a certain amount of money eg a clear debt claim. Unspecified claims are claims where the court will have to investigate the value of the claim (most other claims that are not debt claims)

Question 20

What should be included in a particulars of claim where there is a verbal contract

Answer 20

details of where contract was made, when, what words were used and between whom

Question 21

When making an application to court where must the application be sent?

Answer 21

By r 23.2, the application must be made to the court where the claim has been started, or the
court to where the claim has been sent. If the claim has already been listed for trial, it must be
made to the court where the trial is to take place.

Question 22

When usually should an application notice be served?

Answer 22

three clear days before the court is to deal with the application

Question 23

when can an application be made on the other side without notice?

Answer 23

e. Paragraph
3 of PD 23A indicates that this may be done in the following circumstances:
(a) where there is exceptional urgency;
(b) where the overriding objective is best furthered by doing so;
(c) by consent of all parties;
(d) with the permission of court;
(e) where a date for a hearing has been fixed and the party wishes to make an application at
that hearing but he does not have sufficient time to serve an application notice, he
should inform the other party and the court (if possible in writing) as soon as he can of
the nature of the application and the reason for it. He should then make the application
orally at the hearing;
(f ) where a court order, Rule or Practice Direction permits

Question 24

When may a court give summary judgment under R24.2

Answer 24

On whole or part of claim if

(a) (i) claimant has no real prospect of succeeding; or
(ii) no real prospect of defending

(b)no other compelling reason why case should be disposed of a trial

Question 25

Can a claimant apply for summary judgment where no defence or AOS has been filed?

Answer 25

No and if an application has been made the defendant need not file a defence until after the application has been heard

Question 26

How much notice should a respondent be given of a hearing for summary judgment?

Answer 26

14 days

Question 27

When must a respondent file written evidence for a summary judgment hearing

Answer 27

7 days before, if applicant wishes to respond they must file 3 days before

Question 28

What should an application for summary judgment contain according to para2(3) of PD 24

Answer 28

(a) identify concisely any point of law or provision in a document on which the applicant relies,
and/or

(b) state that it is made because the applicant believes that on the evidence the respondent has no
real prospect of succeeding on the claim or issue, or (as the case may be) of successfully
defending the claim or issue to which the application relates,
and and in either case state that the applicant knows of no other reason why the disposal of the claim or
issue should await trial.

• should also state that it is an application for summary judgment
• should identify any written evidence they intend to rely on and inform respondent of write to file and serve written reply

Question 29

What are the grounds for the court making an interim payment order?

Answer 29

(a) the defendant against whom the order is sought has admitted liability to pay damages or some
other sum of money to the claimant;
(b) the claimant has obtained judgment against that defendant for damages to be assessed or for a
sum of money (other than costs) to be assessed;
(c) it is satisfied that if the claim went to trial the claimant would obtain judgment for a substantial
amount of money (other than costs) against the defendant from whom he is seeking an order for
an interim payment, whether or not that defendant is the only defendant or one of a number of
defendants to the claim;
(d) the following conditions are satisfied—
(i) the claimant is seeking an order for possession of land (whether or not any other order is
also sought), and
(ii) the court is satisfied that, if the case went to trial, the defendant would be held liable
(even if the claim for possession fails) to pay the claimant a sum of money for the
defendant’s occupation and use of the land while the claim for possession was pending;
or
(e) in a claim in which there are two or more defendants and the order is sought against any one or
more of those defendants, the following conditions are satisfied—
(i) the court is satisfied that, if the claim went to trial, the claimant would obtain judgment
for a substantial amount of money (other than costs) against at least one of the
defendants (but the court cannot determine which), and
(ii) all the defendants are either—
(a) a defendant that is insured in respect of the claim;
(b) a defendant whose liability will be met by an insurer under s 151 of the Road
Traffic Act 1988, or an insurer acting under the Motor Insurers Bureau
Agreement, or the Motor Insurers Bureau where it is acting itself, or
(c) a defendant that is a public body

Question 30

What must a Part 36 offer contain pursuant to Rule 36.5(1)

Answer 30

(a) be in writing;
(b) make clear that it is made pursuant to Part 36;
(c) specify a period of not less than 21 days within which the defendant will be liable for the claimant’s costs in accordance with rule 36.13 or 36.20 if the offer is accepted;
(d) state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and
(e) state whether it takes into account any counterclaim.

Question 31

What must be included in the consent order effecting s tomlin order?

Answer 31

Any payment of money out of court and the payment and assessment of costs - PD40B, para 3.5df