DR 1: Pre action steps

Question 1

When should Alternative dispute resolution (ADR) be used?

Answer 1

Always unless:
□ obviously inappropriate (eg injunction is required)
□ other party unlikely to co- operate
□ other party cant be trusted to comply with an award.

Question 2

At which stages should the parties consider settling by ADR?

Answer 2

ALL stages

Question 3

What should a party do if they dont wish to engage in ADR proposed by the other party?

Answer 3

serve a witness statement giving reasons within 21d of proposal

Question 4

Will a witness statement giving reasons for not engaging with ADR be shown to the judge?

Answer 4

Not until costs arise?

Question 5

What is the effect of not responding to a reasonable proposal to attempt settlement by ADR?

Answer 5

could have significant impact on costs

Question 6

What will the court consider when deciding if costs penalties should apply for not engaging with ADR?

Answer 6

*nature of dispute
*merits of case,
*extent to which other settlement methods have been attempted
*whether the costs of the ADR would be disproportionately high
*effect of any delay
*whether ADR had a reasonable prospect of success.

Question 7

Conditions for court to order parties to engage in ADR?

Answer 7

• It doesn’t impair essence of Cs right to proceed to judicial hearing
  *Its proportionate to achieving the legit aim of settling dispute fairly, quickly and at reasonable cost

Question 8

In the directions questionnaire, what are solicitors required to confirm they’ve explained to their client regarding ADR?

Answer 8

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

Question 9

What are the types of ADR?

Answer 9

Mediation
Arbitration

Question 10

What is Mediation?

Answer 10

Means of solving disputes with assistance of independent 3rd party who can help parties reach own conclusion but cant impose a solution

Question 11

Can a mediator impose a solution on the parties?

Answer 11

No, just help parties reach own conclusion

Question 12

Is Mediation voluntary?

Answer 12

Yes unless ordered by court

Question 13

Procedure for mediation

Answer 13

a) Parties agree on mediator (independent expert 3rd body to act as ‘go between’)
b) Mediator sent written statements from both parties and will discuss case with them on a without prejudice basis

Question 14

Will a future judge know about mediation discussions?

Answer 14

No

Question 15

Cost and speed of mediation, arbitration and litigation?

Answer 15

1. Mediation: Cheapest/fastest
2. Arbitration: Quicker (and possibly cheaper) than court (arbitrator may be expensive)
3. Litigation: normally most expensive, slow because of court process, waiting times, stages, formality, have to try ADR first

Question 16

Why is mediation flexible?

Answer 16

no legal requirements parties can choose procedure followed

Question 17

Is mediation confidential?

Answer 17

Yes, takes place in private, no formal disclosure procedire

Question 18

When can you withdraw from mediation

Answer 18

at any time

Question 19

What commercial reality factors are relevant to mediation?

Answer 19

*3rd party can assist parties to arrive at realist & workable settlement inc arrangements court couldn’t order
* Non confrontational =can preserve business relationship

Question 20

Are mediation decisions enforceable?

Answer 20

Not automatically binding and unenforceable BUT can enter contract with agreed terms so can sue for damages

Question 21

What is arbitration?

Answer 21

Parallel to civil justice system-substitute to litigation

Question 22

Can you use the normal court system once using arbitration?

Answer 22

No

Question 23

Is arbitration voluntary?

Answer 23

Yes in that enter into it voluntarily or agree to decide matter this way once dispute arose

Question 24

What are the 2 ways arbitration can arise?

Answer 24

a) Parties contractually bound to use arbitration
b) In absence of arbitration clause, parties may agree to use arbitration once dispute has arisen

Question 25

When does the Arbitration Act 1996 (governing arbitration) apply?

Answer 25

if agreement to arbitrate is in writing

Question 26

Procedure for arbitration?

Answer 26

a) Dispute referred to independent arbitrator (may be specified in original contract, can be expert on area)
b) Arbitration process-less formal than court
c) 3rd parties decision binding on both parties

Question 27

Is arbitration flexible?

Answer 27

Less formal than court, arbitrator makes decisions NOT parties

Question 28

Is arbitration confidential?

Answer 28

Takes place in private

Question 29

What commercial reality factors are relevant to mediation?

Answer 29

Solutions more practical than courts but some remedies not available (ie. Injunctions)

Question 30

When can you withdraw from arbitration?

Answer 30

at any time

Question 31

Are arbitrators decisions enforceable?

Answer 31

Arbitrators decision binding on parties
Winning party can apply to high court under s66 Arbitration Act 1966 for permission to enforce arbitration award as if it were a court judgement

Question 32

When is litigation used?

Answer 32

if cant use ADR

Question 33

Is litigation flexible?

Answer 33

inflexible-courts control procedure decide what happens, inflexible solutions, not voluntaary

Question 34

Is litigation confidential?

Answer 34

Low-published=could be bad for reputation and image, more duty to disclose (can redact names for minors, really sensitive cases)

Question 35

What commercial reality factors are relevant for litigation?

Answer 35

inflexible solutions

Question 36

Can you withdraw from litigation?

Answer 36

Cant withdraw without paying costs

Question 37

Are litigation decisions enfoceable?

Answer 37

Yes, courts can impose enforceable solution

Question 38

Who are court managers?

Answer 38

Senior civil servant in charge of court office

Question 39

Who are ushers?

Answer 39

assist with smooth running of courts, inc. ensuring lists of cases dealt with efficiently

Question 40

Who are enforcement officers?

Answer 40

bailiffs and High Court Enforcement Officers serve court documents and enforce court orders and judgments

Question 41

What judges will deal with DR?

Answer 41

*District judges-deal with majority of interim applications and trials not exceeding £25k
*Circuit judges/high court judges for rest

Question 42

Why must time limits for bringing a claim be complied with?

Answer 42

Because otherwise, case will be statue barred and D has technical defence

Question 43

Limitation period for contract

Answer 43

6y from date of cause of action UNLESS diff limitation period in contract

Question 44

Limitation period for tort

Answer 44

6y from date of cause of action

Question 45

Limitation period for personal injury

Answer 45

3y from date of cause of action/knowledge of injured person

Question 46

How does the limitation period for PI differ for children?

Answer 46

3y from 18th bday (=will always expire on 21st bday)

Question 47

Limitation period for negligence where damage is latent at date of cause?

Answer 47

◊ 6y from date of cause
◊ OR 3y from date of knowledge (if later) (of injury significance, was attributable to act/omission, Ds identity)
◊ No later than 15y from date of negligent act/omission
UNLESS exceptional circumstances

Question 48

Who needs a litigation friend?

Answer 48

*Under 18s
*protected parties (person incapable of managing their own affairs bc of a mental disorder as defined by the Mental Capacity Act 2005)

Question 49

Requirements for a litigation friend?

Answer 49

A litigation friend must be able to fairly and competently conduct proceedings on behalf of the party and have no adverse interest

Question 50

What are the types of claims (in relation to money)

Answer 50

1. Specified claim-for fixed amount (ie. Debt owed)
2. Unspecified claims (ie. Damages)