DR 3 - Pre-action considerations and ADR Flashcards
What are the aims of the Pre-Action Protocols?
Encourage openness between parties and resolve disputes early without going to court
They aim to help parties share essential information to facilitate settlement as soon as possible. If a settlement isn’t reached, the protocols lay a foundation for a faster court process.
What should a defendant do if they intend to admit liability?
Do so early and clearly.
What may happen if a party ignores an ADR proposal?
It may be seen as unreasonable.
What are the consequences of non-compliance with pre-action protocols?
The court may impose penalties related to costs and interest.
What exemptions exist for non-compliance with pre-action requirements?
Imminent expiration of time limits and urgency or element of surprise.
What is the limitation period for personal injury claims?
3 years of the latest of:
(a) the date when the cause of action accrued; or
(b) the date of knowledge of the person injured.
Define ‘date of knowledge’ in the context of personal injury claims and fatal accidents.
PI - Knowing that the injury is significant, that it attributed to wrongdoing, and identity of the defendant.
FA - You are looking at this from the perspective of the dependent and not the injured.
What is the limitation period for fatal accident claims?
3 years from the date of death or knowledge of the facts.
What can the court do regarding extension of time for personal injury or fatal accidents?
Extend time if equitable, considering conduct, reasons for delay, and effect on evidence.
What is the limitation period for latent damage?
In negligence claims (other than claims for personal injury), the limitation period is extended to the later of:
(a) Six years from when the cause of action accrued; or
(b) Three years from when he had the requisite: (i) knowledge; and (ii) right to bring a claim.
Subject to max limit of 15 years from the date of the latest negligent act which caused all or part of the damage.
What is the limitation period for tort and contract claims?
6 years after the date on which the cause of action accrued.
When does the limitation period start for a claimant under a disability?
When the disability ends.
In fraud cases, when does the limitation period start to run?
When the claimant discovers the fraud or could have discovered it with reasonable diligence.
What are the types of Alternative Dispute Resolution (ADR)?
- Negotiation
- Mediation
- Arbitration
- Med-arb
- Early neutral evaluation
- Expert determination
- Conciliation
What is the role of lawyers in ADR?
- Inform clients of ADR options
- Support clients’ ADR decisions
- Act within the client’s settlement authority
What factors suggest that ADR should be attempted earlier?
- Cost saving
- Better relationships and information
What factors suggest that ADR should be attempted later?
- Better understanding of each other’s case
- Better understanding of available evidence
What does the court expect from parties regarding ADR?
To explore ADR and can impose sanctions if they do not.
What can the court do to encourage ADR engagement?
- Provide information about ADR
- Encourage parties to consider ADR
What happens if a party refuses to engage in ADR but is successful in litigation?
The court will consider the reasonableness of the refusal and may impose a costs penalty.
What should a party do if offered ADR?
Consider engaging in the ADR process.
What penalties may a party face for refusing an invitation to use ADR?
A party may face penalties for refusing an invitation to use ADR
The court’s stance changes if a party did not suggest ADR.
Will the court refuse to award costs to a successful party that did not suggest ADR?
No, the court will not refuse to award costs simply because ADR was not suggested
However, consequences may arise if this failure violates a court order or pre-action protocols.
How is silence in response to an offer of ADR likely to be interpreted?
Silence is likely to be considered unreasonable and may be sanctioned in costs
This is unless the parties are already engaged in a form of ADR.
What should a party do if offered ADR?
A party should:
* Consider the merits of the offer with legal advisors
* Respond promptly in writing
* Explain the circumstances under which it would agree to ADR
* Use ‘open’ or ‘without prejudice save as to costs’ in the letter
* Make a separate note of reasons for refusal
It is rare to indicate that ADR will never be appropriate.
What powers does the court have to encourage ADR at a CMC?
The court can:
* Order a stay for parties to explore ADR
* Direct parties to consider ADR and require explanations
* Require a witness statement explaining ADR refusals
These measures can be reviewed if costs arise.
Fill in the blank: Silence in the face of an offer to engage in ADR is likely to be considered ______.
unreasonable
True or False: A party can indicate that ADR will never be appropriate.
False
