Dr 1 - ADR Flashcards
General rule
Litigation last resort
Without prejudice
If fails and proceedings, court not made aware until after issues of liability.
Should be used
However should not be where;
-injunction required
-other party unlikely to co-operate
-cannot be trusted to comply.
Penalties unless can justify stance to court.
Court may impose penalty for not complying
Factors;
nature
merits
extent to which settlement methods been attempted
costs of ADR
delays in ADR amounting to prejudice
ADR prospect of success.
Burden on party to show unreasonable with court rejection presumption in favour of mediation.
Mediation
Agree third party.
Discuss case on without prejudice basis.
Advs
Cost and speed compared to arbitration.
Flexible
Privacy
Preserve business relationship
Commercial reality
Ability to withdraw
Disadvs
Disclosure (may not know all facts)
privacy (public vindication)
can withdraw at any stage.
No automatically binding enforcement
Arbitration
Arbitration clause.
Advs -
Quicker and cheaper than court
Less formal
Impartial third party with expertise
In private
Practical
Binding
Disadvantages -
Not same depth
Injunctions not available
Can be expensive
Can apply to High Court under s66 to enforce award.
Litigation
CPR rules help litigants in person.
Disputes by Country Court or High court.
Country and High courts (district judges)
Called masters in London -
Up to £25,000.
Court manager -
senior civil servant
Civil claim
-
Limitation
Statute barred.
(Technical defence to claim)
Contract or tort - six years.
Date of cause of action accrues excluded.
Contract - breach occurs
Tort - when tort committed.
Personal injury - three years.
Children run from 18th birthday.
Negligence where damage hidden -
six years from date of cause of action
or three years from date of knowledge
BUT
no more than 15 years.
Extensions allowed in exceptional circumstances (A v Hoare 2008).
Parties
Under 18 and mental disorders litigation friend.
Inquiry agent can help to find D>
Defendants solvency -
Companies House
Bankruptcy search
Inquiry agent.
Types of claim
Specified - fixed amount of money. Claim for debt owed.
Unspecified -
Damages
Pre-action procedure
PDPAC - increase pre-action contact between parties. Encourage netter and earlier exchange of information.
Principles -
Last resort
Exchange information to
-understand postion
-make decisions
-try to settle
Consider ADR
Support efficient management
Reduce costs.
Steps should usually include
-writing to D with concise details of claim
-D responding within reasonable time
-Parties disclosing key documents relevant to dispute.
-Reasonable and proportionate steps to identify narrow and resolve legal factual and/or expert issues.
-Dispute not been resolved should review respective positions to see if can avoid
-Court will expect to follow. May be sanctioned.
Must exchange information before proceedings and attempt to settle.
C writes to D with concise details of claim - summary of facts, sum due and how amount calculated.
Must provide response within reasonable time
14 days - straightforward
Three months - complex.
Confirm whether part of all of claim accepted and if not reasons why with details of counterclaim.
Failure to comply
-pays some or all of opponent costs (indemnity basis potentially)
-depriving claimant who is at fault of some or all interest
-requiring a defendant at fault to pay interest on any damages awarded to claimant at rate up to 10% per annum above base rate.
False statement in pre-action protocol letter may be subject to contempt of court.
Debt claims
Pre-Action Protocol for Debt Claims (PPDC) -
sole traders and public bodies that brings a claim against an individual or sole trade
NOT BUSINESS TO BUSINESS/
C must give full information on debt owed, up-to date statement of account with details of interests and charges.
30 days to respond.
Proceedings cannot be issued before.
Professional negligence
Against professionals.
Encouraged to notify professional in writing.
Preliminary notice contains info about C, brief outline and if possible financial indication.
Professional should instruct insurers immediately.
21 days to acknowledge.
Next C
writes letter of claim giving full details and attaching key documents.
21 days to acknowledge.
Three moths after to investigate and respond.
Letter of Response -
whether admits and if not why with documents.
Could also send Letter of Settlement.
Should start negotiations within 6 months of letter of acknowledgement.
Cannot be resolved.
Final stocktake in which parties review positions.
