Dispute Resolution Flashcards
What is the overriding objective?
1.1 - Dealing with cases justly and at proportionate cost
How does S52(2)(a) of the Courts and Legal Services Act 1990 define a CFA?
‘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’
What are the requirements for a valid CFA under ss 58 and 58A of the Courts and Legal
Services Act 1990?
(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%)
If a client has a CFA and wins the case a success fee is usually payable, can this be recovered from the other side?
No
Name advantages and disadvantages of arbitration as a form of ADR
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
What does Rule 1.4(1)(2)(e) say about ADR?
It encourages the parties to use an alternative dispute resolution procedure if the court considers that
appropriate and facilitating the use of such procedure.
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.
Mediation - remember do not have to be in the same place, mediation can take place by telephone.
Describe ‘Med-arb’
Parties agree to submit their dispute to mediation and, if this does not work they will refer to arbitration.
Describe ‘mini trial’ or ‘structured settlement procedure’
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.
Describe ‘Expert Appraisal’
Parties refer dispute to expert in a disputed field. His opinion is not binding but may influence negotiations.
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.
Judicial appraisal
What is the difference between expert appraisal and expert determination?
Parties agree expert to decide case and agree to accept decision and can sue in breach of contract if they do not.
Difference between expert determination and arbitration?
Cannot be enforced as a court order but may be enforced in breach of contract. Unlike arbitrator expert may be sued in negligence.
Describe final offer arbitration
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.
Describe Early Neutral Evaluation
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
How is a Damamages Based Agreement (DBA) described in S58AA(3)(a) of the CLSA 1990
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.
What are the requirements for a valid DBA contained in S58AA(4) of the CLSA 1990
(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.
What did the Court of Appeal say in relation to before the event insurance (BEI) in Sarwar v Alam [2001] EWCA Civ 1401
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.
What is the practical difference between a specified and unspecified claim?
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)
What should be included in a particulars of claim where there is a verbal contract
details of where contract was made, when, what words were used and between whom
When making an application to court where must the application be sent?
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.
When usually should an application notice be served?
three clear days before the court is to deal with the application
when can an application be made on the other side without notice?
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
When may a court give summary judgment under R24.2
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
