DR 1: Pre action steps Flashcards
When should Alternative dispute resolution (ADR) be used?
Always unless:
□ obviously inappropriate (eg injunction required)
□ other party unlikely to co- operate
□ other party cant be trusted to comply with an award.
At which stages should the parties consider settling by ADR?
ALL stages
What should a party do if they dont wish to engage in ADR proposed by the other party?
Serve a witness statement giving reasons within 21d of proposal
Will a witness statement giving reasons for not engaging with ADR be shown to the judge?
Not until costs arise
What is the effect of not responding to a reasonable proposal to attempt settlement by ADR?
could have significant impact on costs
When can a party be ordered to contribute to the others costs because of what happened during ADR?
If it can be established via admissible evidence that its conduct caused mediation to fail where otherwise the mediation would have had a reasonable prospect of succeeding
6
What will the court consider when deciding if costs penalties should apply for not engaging with ADR?
- Nature of dispute
- Merits of case,
- Extent to which other settlement methods attempted
- Costs of ADR disproportionately high
- Effect of delay
- Did ADR have a reasonable prospect of success?
Conditions for court to stay proceedings and order parties to engage in ADR?
- 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
In the directions questionnaire, what are solicitors required to confirm they’ve explained to their client regarding ADR?
(a) the need to try to settle
(b) the options available
(c) the possibility of costs sanctions if they refuse to attempt to settle.
What are the types of ADR?
Mediation
Arbitration
What is Mediation?
Means of solving disputes with assistance of independent 3rd party who can help parties reach own conclusion but cant impose a solution
Can a mediator impose a solution on the parties?
No, just help parties reach own conclusion
Is Mediation voluntary?
Yes unless ordered by court
Procedure for mediation
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
Will a future judge know about mediation discussions?
No
Cost and speed of mediation, arbitration and litigation?
- Mediation: Cheapest/fastest
- Arbitration: Quicker (and possibly cheaper) than court (arbitrator may be expensive)
- Litigation: normally most expensive, slow because of court process, waiting times, stages, formality, have to try ADR first
Why is mediation flexible?
no legal requirements parties can choose procedure followed
Is mediation confidential?
Yes, takes place in private, no formal disclosure procedire
When can you withdraw from mediation
at any time
What commercial reality factors are relevant to mediation?
*3rd party can assist parties to arrive at realist & workable settlement inc arrangements court couldn’t order
* Non confrontational =can preserve business relationship
Are mediation decisions enforceable?
Not automatically binding and unenforceable BUT can enter contract with agreed terms so can sue for damages
What is arbitration?
Parallel to civil justice system-substitute to litigation
Can you use the normal court system once you start using arbitration?
No
Is arbitration voluntary?
Yes in that enter into it voluntarily or agree to decide matter this way once dispute arose
What are the 2 ways arbitration can arise?
a) Contractually bound to use
b) In absence of arbitration clause, parties may agree to use arbitration once dispute has arisen
When does the Arbitration Act 1996 (governing arbitration) apply?
if agreement to arbitrate is in writing
Procedure for arbitration?
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
Is arbitration flexible?
Less formal than court, arbitrator makes decisions NOT parties
Is arbitration confidential?
Takes place in private
What commercial reality factors are relevant to mediation?
Solutions more practical than courts but some remedies not available (ie. Injunctions)
When can you withdraw from arbitration?
at any time
Are arbitrators decisions enforceable?
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
When is litigation used?
if cant use ADR
Is litigation flexible?
inflexible-courts control procedure decide what happens, inflexible solutions, not voluntaary
Is litigation confidential?
Low-published=could be bad for reputation and image, more duty to disclose (can redact names for minors, really sensitive cases)
What commercial reality factors are relevant for litigation?
inflexible solutions
Can you withdraw from litigation?
Cant withdraw without paying costs
Are litigation decisions enfoceable?
Yes, courts can impose enforceable solution
Who are court managers?
Senior civil servant in charge of court office
Who are ushers?
assist with smooth running of courts, inc. ensuring lists of cases dealt with efficiently
Who are enforcement officers?
bailiffs and High Court Enforcement Officers serve court documents and enforce court orders and judgments
What judges will deal with DR?
*District judges-deal with majority of interim applications and trials not exceeding £25k
*Circuit judges/high court judges for rest
Why must time limits for bringing a claim be complied with?
Because otherwise, case will be statue barred and D has technical defence
Limitation period for contract
6y from date of cause of action UNLESS diff limitation period in contract
Limitation period for tort
6y from date of cause of action
Limitation period for personal injury (adults)
3y from date of cause of action/knowledge of injured person
How does the limitation period for PI differ for children?
3y from 18th bday (=will always expire on 21st bday)
Limitation period for negligence where damage is latent at date of cause?
◊ 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
Who needs a litigation friend?
- Under 18s
- Protected parties (person incapable of managing their own affairs bc of a mental disorder as defined by the Mental Capacity Act 2005)
Requirements for a litigation friend?
Must be able to fairly and competently conduct proceedings on behalf of the party and have no adverse interest
What are the types of claims (in relation to money)
- Specified claim-for fixed amount (ie. Debt owed)
- Unspecified claims (ie. Damages)
How to figure out is a defendant is worth suing?
- Search CH
- Bankruptcy search of individual
- Instructing inquiry agent (costs)
- Internet search
Purpose of damages in contract
Put claimant in position they would have been in if contract had been properly performed
Purpose of damages in tort
Put claimant in position they would have been in if negligent act/nuisance hadn’t occurred
Purpose of damages for misrepresentation
To put claimant back to the position they were in before the contract was entered into
4
What types of claims have established pre action protocols?
- Debt
- Personal Injury
- Professional negligence
- Construction and engineering
What should be done about Pre-action protocols if theres no established protocol for that type of claim?
Follow general guidance in: “Practice Direction and Pre- Action Protocols (PDPAC)”
To whom does the established protocol for debt claims apply?
individual & sole trader - business (inc. sole traders/public bodies) debts (NOT business-business)
What is the established protocol for debt claims?
- Potential C give full info on debt owed, inc an up- to- date statement of account with details of interest and charges, and how the debt can be paid
- Inc. standard Reply Form, Information Sheet and Financial Statement forms that are annexed to the protocol
- Individual has 30d to respond (court proceedings cant be issued before this)
What is the established pre action protocol for professional negligence? (additional steps to Practice Direction and Pre Action Protocol)
- C give preliminary notice to professional in writing . The professional should be instructed to inform insurers and acknowledge notice within21d receipt
- C send letter of claim (full issues/full docs)
- Professional should acknowledge within 21d of receipt
- D investigates claim and sends Letter of Response and/or Letter of Settlement within 3mo
- If LoR denies claim and theres no letter of settlement, C can start court proceedings, ANY other circumstance=negotiate
Within what timeframe should negotiations to resolve a professional negligence claim aim to be resolved?
6 months of the date of the Letter of Acknowledgement
What is the purpose of the Practice Direction and Pre- Action Protocols (PDPAC)?
To initiate and increase pre action contact between the parties, in particular to encourage better and earlier exchange of information
Practice Direction and Pre- Action Protocols (PDPAC): when should ligation be used?
As a last resort
Practice Direction and Pre- Action Protocols (PDPAC): what docs should parties exchange sufficient information to do?
(a) understand each other’s position
(b) decide how to proceed;
(c) try to settle the issues without proceedings
(d) consider a form of ADR to assist with settlement;
(e) support the efficient management of proceedings
(f) reduce costs of resolving dispute.
Practice Direction and Pre- Action Protocols (PDPAC): what steps should be taken?
- C sends LETTER BEFORE CLAIM inc concise details, facts summary, what C wants, key docs
- D sends LETTER OF RESPONSE within reasonable time (14d for straightforward claim/3mo max for complex) confirming if accepted, reasons, key docs, if counter claim
- C replies and both consider NEGOTIATION, ADR, APP. EXPERTS
- stocktake: before issuing proceedings consider positions, if can avoid and issues in dispute
Practice Direction and Pre- Action Protocols (PDPAC): Sanctions for non compliance that leads to unnecessary proceedings/costs?
(a) party at fault pays some/all of opponent’s costs (perhaps on the penalty, indemnity basis);
(b) C is depraved of some/all interest on any damages
(c) D pays higher interest on any damages (up to 10% per annum above the base rate)
Practice Direction and Pre- Action Protocols (PDPAC): what type of steps should be taken to identify/resolve/narrow issues?
Only reasonable and proportionate steps
This will inc C writing to D with concise details of claim, inc summary of facts, sum due, how amount calculated
Practice Direction and Pre- Action Protocols (PDPAC): what should be done if a party hasn’t resolved a dispute after following the practice direction?
Review relative positions to see if proceedings can be avoided
At least seek to narrow issues in dispute before C issues proceedings
What is the consequence of making a false statement in a pre action protocol letter?
may be in contempt of court
Can proceedings be conducted in welsh?
Yes if all parties/witnesses consent
For international disputes, how is it determined which jurisdictions law will apply?
◊ Contract=should state (but UCTA1977 contain requirements that apply regardless of agreement to contrary)
◊No governing law chosen=default provisions come into play and parties dont have a choice, decided by court as preliminary matter
Will an agreed contractual limitation period override the statutory limitation period for bringing a claim?
Yes, subject to UCTA 1977 (reasonablensess)
What does a reference to ‘English law’ include?
England and Wales NOT Scotland and Northern Ireland
For the sale of goods with an international element, which country will have jurisdiction?
the country where the goods were delivered too, NOT despatched from
What is the effect of Brexit on disputes with an international element?
For proceedings issued in English courts after 1 Jan 2021, the old jurisdictional rules of the EU arent valid and each country applies its own domestic rules to cases where the UK is involved
