General Matters Flashcards
Personal Injury Claims threshold
CC < £50k < HC/CC
Non-PI Claims threshold
CC < £100k < HC/CC
Factors to consider when deciding HC/CC
Financial value/amount in dispute
Complexity of facts, legal issues, remedies and procedures
importance of outcome to public in general
Ref. to claims relating to Business and Property should be labelled…
‘Business and Property Courts’ in HC
‘Business and Property work’ in CC
(both - labelled top right corner)
The Overriding-Objective..
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
Duty of Court and Parties to apply OO…
applies at all times
‘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?
True
Active case management includes…
encouraging parties to co-operate
helping parties to settle whole/part (discretion to order a stay)
hearing/ordering a stay for use of ADR
‘scale’ of compulsion to use ADR
required to consider use –> provide evidence ADR has been seriously considered –> at least try to use mediation before litigation…
Line on promoting use of ADR…
strongly promote, cannot make compulsory
Advantages of ADR
Lower Costs
Speed
Choice of forum Flexibility of process and outcome
Confidentiality/privacy
Protect relationship
Problem-solving approach
Risk Management
Selection of ADR - factors to consider:
Importance of any ‘factor’ +
expert input?
Neutral assistance?
Control?
Binding decision?
ADR may not be appropriate when
-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
Duties under CPR in relation to use of ADR
Lawyers and parties required to assist court in furthering OO.
Inc. encouraging use of ADR - providing advice on it.
A lawyer negotiating on behalf of a client must…
act within their authority and instructions
What may a court do if a party fails to engage with ADR?
costs penalization.
stay proceedings to enable it.
HALSEY comments on compulsion
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)
Strongest form of encouragement lies in an order that can be made by the Commercial Court….
requiring a party to engage in Judicial ENE conducted by the court - even if party unwilling.
What is the role of the Directions Questionnaire in relation to ADR compliance?
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?
What will the court do if reasons presented but not accepted?
direct parties to attend CMC - consider whether ADR should be attempted - can make a direction for parties to do so.
Stay granted fr ADR…
Generally for a month, may be extended by a further 28 days unless court provided with a clear reason why this is justified.
If settlement reached while on a stay, what must parties do to dispose of claim?
apply for a Consent Order or Tomlin Order
If no settlement reached while on stay…?
parties will need to apply to lift the stay (if not expired) and for any further directions
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?
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)
