General Matters

Question 1

Personal Injury Claims threshold

Answer 1

CC < £50k < HC/CC

Question 2

Non-PI Claims threshold

Answer 2

CC < £100k < HC/CC

Question 3

Factors to consider when deciding HC/CC

Answer 3

Financial value/amount in dispute
Complexity of facts, legal issues, remedies and procedures
importance of outcome to public in general

Question 4

Ref. to claims relating to Business and Property should be labelled…

Answer 4

‘Business and Property Courts’ in HC
‘Business and Property work’ in CC
(both - labelled top right corner)

Question 5

The Overriding-Objective..

Answer 5

enable the court to deal with cases justly and at proportionate cost -
inlcuding:
- ensuring parties on equal footing
- saving expense
- proportionate to amount of money involved, importance, complexity and financial position of parties
- expeditious and fair
- allocation of resources
- enforcing compliance with rules

Question 6

Duty of Court and Parties to apply OO…

Answer 6

applies at all times

Question 7

‘Co-operation does not require a party to remind the other of a procedural time limit’ - e.g a Defendant is under no duty to remind C of the need to serve a claim form. T/F?

Answer 7

True

Question 8

Active case management includes…

Answer 8

encouraging parties to co-operate
helping parties to settle whole/part (discretion to order a stay)
hearing/ordering a stay for use of ADR

Question 9

‘scale’ of compulsion to use ADR

Answer 9

required to consider use –> provide evidence ADR has been seriously considered –> at least try to use mediation before litigation…

Question 10

Line on promoting use of ADR…

Answer 10

strongly promote, cannot make compulsory

Question 11

Advantages of ADR

Answer 11

Lower Costs
Speed
Choice of forum Flexibility of process and outcome
Confidentiality/privacy
Protect relationship
Problem-solving approach
Risk Management

Question 12

Selection of ADR - factors to consider:

Answer 12

Importance of any ‘factor’ +
expert input?
Neutral assistance?
Control?
Binding decision?

Question 13

ADR may not be appropriate when

Answer 13

-Need for legal precedent to be set/developed
-Court order = interim or final remedy
-Strength of case
-Complexity of case
-High degree of animosity
-Power imbalance
-‘Quasi-criminal’ allegations
- ‘Day in court’
-Enforcement

Question 14

Duties under CPR in relation to use of ADR

Answer 14

Lawyers and parties required to assist court in furthering OO.
Inc. encouraging use of ADR - providing advice on it.

Question 15

A lawyer negotiating on behalf of a client must…

Answer 15

act within their authority and instructions

Question 16

What may a court do if a party fails to engage with ADR?

Answer 16

costs penalization.
stay proceedings to enable it.

Question 17

HALSEY comments on compulsion

Answer 17

Although the court can encourage parties to use ADR and make orders facilitating it, it cannot compel them to use it if they do not wish.
AND
if parties do use ADR process, court cannot make them reach a settlement.
(would be a violation of Article 6 ECHR)

Question 18

Strongest form of encouragement lies in an order that can be made by the Commercial Court….

Answer 18

requiring a party to engage in Judicial ENE conducted by the court - even if party unwilling.

Question 19

What is the role of the Directions Questionnaire in relation to ADR compliance?

Answer 19

Parties have the option to inform court they wish to have a stay for one month to try and settle the claim.
Parties also asked to confirm whether they have complied with pre-action protocol - if not, why not?

Question 20

What will the court do if reasons presented but not accepted?

Answer 20

direct parties to attend CMC - consider whether ADR should be attempted - can make a direction for parties to do so.

Question 21

Stay granted fr ADR…

Answer 21

Generally for a month, may be extended by a further 28 days unless court provided with a clear reason why this is justified.

Question 22

If settlement reached while on a stay, what must parties do to dispose of claim?

Answer 22

apply for a Consent Order or Tomlin Order

Question 23

If no settlement reached while on stay…?

Answer 23

parties will need to apply to lift the stay (if not expired) and for any further directions

Question 24

HALSEY FACTORS - ‘general rule’ that costs follow the event unless successful party has acted unreasonably in refusing to agree to ADR.
How do we measure unreasonableness?

Answer 24

burden on unsuccessful party to prove
consider:
- nature of dispute
- merits of the case
- the extent to which other settlement methods have been attempted
- whether costs of ADR process would be disproportionately high
- whether any delay in setting up/attending ADR would have been prejudicial (rejection of offer only 2mths - 13 days before trial ok)
- whether ADR process had reasonable prospect of success (relationship between parties/attitude)

Question 25

Halsey Guidelines do not apply where…

Answer 25

it is the successful party which did not initiate ADR
as opposed to rejecting them.

Question 26

Vale of Glamorgan Council v Roberts

Answer 26

Halsey Guidelines distinguished where successful party did not initiate ADR - different where successful party deliberately exaggerated amount of claim AND failed to initiate ADR, but where exaggerate AND negotiated realistically and promptly = ok

Question 27

Silence in the face of an invitation to ADR

Answer 27

Extends Halsey principles - silence in face of ADR is unreasonable - regardless of good reason

Question 28

Practical steps to avoid sanctions

Answer 28

• Do not ignore offer to engage in ADR
• respond promptly with agreement/reasons why not appropriate (Halsey)
• if lack of evidence/info is the obstacle - communicate with other party to obtain info
• do not refuse engagement totally - just at this time - may be time in future where amenable to it

Question 29

Pre-selection of ADR process
enforceability of clause commiting to ADR?

Answer 29

sufficiently clear, and contractually binding - enforceable

Question 30

Advantages of pre-selection

Answer 30

• easier to make agreement on how to deal with a dispute when contract is made
• more control of appropriate/cost effective/timescale
• litigation less likely
• specific body can be identified
• easier to ensure confidentiality
• easier to maintain constructive approach and avoid escalation

Question 31

Advantages of considering ADR early

Answer 31

• best oppo to save time and costs
• an ajudicative ADR should be selected before litigation commenced
• clarifying issues in case

Question 32

disadvantages of early ADR?

Answer 32

-time and money wasted if not successful
- may exacerbate dispute
- difficult at early stage to evaluate case
- tactical>genuine use

Question 33

At what stage may a judge be in a position to assess appropriateness of ADR and make directions as to way forward?

Answer 33

after filing of DQ, case management conference in larger claims

Question 34

interim orders can be used to support ADR on application of a party/on judge initiative
for example….

Answer 34

• specific guidance on progress - warnings about costs penalties
• order to support ADR in complex case
• trial of a preliminary issue - if rest of case may then settle
• key interim decision e.g strike out of whole/part of case

Question 35

Practical factors relevant to timing

Answer 35

• OO
• Position as regards costs
• timeframe for reaching a decision
• issues in the case
• availability of information
• availability and importance of evidence
• importance of interim applications
• strength of the case
• antagonism between parties