Disputes Resolution 1: Pre-action

Question 1

What are a solicitors duties in relation to ADR?

Answer 1

• All lawyers should routinely consider with clients if ADR is suitable for their case
• Lawyers need to ensure clients understand the availability and purpose of ADR and provide advice where appropriate

Question 2

Why might a party be punished in relation to ADR and what might the punishment be?

Answer 2

• might be punished for failing to respond to request for ADR (should provide reasons)
• If party fails to do this court has discretion to penalise them in respect to legal costs they can recover/making them liable for other sides legal costs

Question 3

What are thepractice directions (step by step) and when are they used

Answer 3

Used when no specific protocol applies

Steps
- claimant to write to defendant with concise details of claim
- defendant to respond if claim is accepted or reasons why not withing reasonable time (14 days in straightforward case / 3 months in complex case)
- parties to disclose key documents relevant to issues in dispute.
- Parties should be aware that court must give permission before they can rely on expert evidence and may limit fees recoverable
- Parties to consider using single joint expert (if needed at all)
- Parties to consider ADR (may be required to give evidence of this if proceeding are issued)

Question 4

Consequences for not complying with pre-action proposals / what might the court consider when punishing?

Answer 4

Court likely only concerned with real breaches not smaller or technical ones.
- Will consider effect of breach when giving imposing punishment
- may relieve the parties of obligations to comply with requirements

Consequences may include:
- Sanctions (breaching party to pay other sides costs)
- Stay of proceedings to allow directions/protocol to be followed

Question 5

When could issue preceding without compliance with protocols?

Answer 5

Where end of limitation period is close

Where court order is required to protect or preserve evidence or assets

Where there is concern that D may seek to issue proceedings in another country

Question 6

What must be met for application for pre-action disclosure?

Answer 6

• respondent is likely to be a party to proceedings;
• applicant is likely to be party to proceedings;
• documents, or classes of documents, requested would be disclosed under standard disclosure; and
• disclosure now would fairly assist in disposing of the claim without the need to issue proceedings and save costs

If non-party
- if it will support the claim, or adversely affect the opponent’s case; and
is necessary to dispose of the matter fairly or to save costs

Question 7

What must be met for application for pre-action inspection of property?

Answer 7

Applicant must show that property in question:
- is, or may become, the subject matter of the proceedings
- is relevant to the issues that will arise in relations to those proceedings

Question 8

Can costs be recovered for pre-action protocol period?

Answer 8

Generally not

Exception
- if proceedings were issued but stayed to allow parties to comply with protocol
- an award to recover some wasted costs is more likely
- still only proportionate costs are likely

Question 9

What claims does Queens Bench Division deal with? What are the special courts in it?

Answer 9

• Breach of contract
• Negligence
• Personal Injury
• Land Possession
• Non-Payment of Debts

Special Courts
Business and Property Courts including:
- Technology and Construction Courts
- Commercial Courts
- Construction Courts

Question 10

What claims does chancery division deal with?

Answer 10

• Equity and trusts
• Tax
• Land
• Business Disputes
• Contentious Probate
• Bankruptcy
• Professional Negligence