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Civil Litigation > General Matters (Syllabus 1). > Flashcards

General Matters (Syllabus 1). Flashcards

1
Q

Where would you start proceedings (personal injury) if the value of the claim is less than £50,000?

A

Proceedings must be started in the County Court

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2
Q

Where would you start proceedings (personal injury) if the claim was for more than £50,000?

A

the proceedings can be initiated in either the High Court or County Court?

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3
Q

What factors can be taken into account when deciding whether to proceed with the claim in the High Court or County Court?

A

(1) the financial value of the claim
(2) the complexity of the facts, legal issues, remedies or procedures involved.
(3) the importance of the outcome to the public in general.

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4
Q

Where would you start proceedings for a claim with a value of £100,000 or less?

A

Proceedings must be started in the County Court

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5
Q

Where would you start proceedings for a claim worth more than £100,000?

A

Proceedings may be started in either the High Court or the County Court.

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6
Q

What is the overriding objective?

A

that the court should deal with cases justly and at proportionate cost

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7
Q

What is meant by dealing with cases justly and at a proportionate cost?

A

(1) ensuring that the parties are on equal footing.
(2) saving expense
(3) dealing with the case proportionately (considering the amount of money involve, the importance of the case, complexity of the issues)
(4) ensuring the case is dealt with expeditiously and fairly.
(5) allocating an appropriate share of the court’s resources.
(6) enforcing compliance with rules, PDs and orders.

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8
Q

How can the court apply the overriding objective?

A

the court can give effect to the overriding objective when it exercises any power given to in within the CPR; or interprets rules.

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9
Q

What are the parties’ duties when it comes to the overriding objective?

A

the parties have a duty to further the overriding objective?

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10
Q

What does the duty of active case management involve?

A

(1) encouraging parties to cooperate with each other.
(2) identifying the relevant issues at an early stage.
(3) deciding the order in which to resolve issues.
(4) encouraging parties to use ADR
(5) helping the parties to settle part or all of the case
(6) dealing with where possible, multiple aspects of the case on the same occasion.

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11
Q

How can the court encourage parties to cooperate?

A

the court can encourage parties to cooperate with one another by imposing cost sanctions. These types of costs orders tend to be for costs on the indemnity basis.

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12
Q

How can the court help parties to settle the case?

A

the court should encourage consensual settlement. They can do this by ordering ENE for example

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13
Q

Can parties be compelled to use ADR?

A

parties cannot be compelled to use ADR per se, but they can be encouraged through the use of cost sanctions for example.

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14
Q

What motivations are there for using ADR?

A

(1) cheaper
(2) faster
(3) choice of forum
(4) parties maintain control
(5) flexible
(6) confidential
(7) wider range of issues can be considered
(8) protects relationships
(9) more constructive for solving problems.
(10) risk can be more cost effectively controlled.

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15
Q

Criteria for selection: how important is it to minimise cost?

A

If there is a need to keep costs low, court-based mediation may be free.

Negotiation is often cheaper than mediation.

Negotiation, mediation, ENE or expert determination can all be good options.

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16
Q

How important is a fast resolution?

A

If a fast resolution is important than non-adjudicative options may be the most effective.

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17
Q

How much control do the parties want?

A

Parties have substantial control because ADR is based on agreement.

But parties maintain the most control in non-adjudicative ADR.

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18
Q

What are the main objectives of the party?

A

if the main objective is to decide on an appropriate sum of compensation, any ADR process is appropriate.

Non-pecuniary objectives may be best achieved in non-adjudicative ADR.

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19
Q

Is a future relationship important?

A

Non-adjudicative ADR is most likely to produce a successful outcome

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20
Q

Is the view of an expert important to key issues?

A

Early neutral evaluation or expert determination should be considered.

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21
Q

would neutral assistance be valuable?

A

a mediator could bring a lot of value, with an independent perspective that can cut through the positions taken to identify a middle ground.

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22
Q

When might ADR not be appropriate?

A

(1) where there is a need for a precedent
(2) where the outcome can only be achieved through a court order
(3) if an interim order is necessary
(4) for the evidential rules
(5) the strength of a case
(6) complexity of the case
(7) level of animosity between parties
(8) imbalance in power
(9) quasi-criminal allegations

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23
Q

What are the duties of lawyers and parties under the CPR?

A

Lawyers and parties are required to assist the court in furthering the overriding objective. There is a positive duty to assist the court in saving expense, ensuring that a case is dealt with expeditiously.

The point is not only to comply with obligations, but also to take appropriate action where an opponent does not.

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24
Q

What is the role of a lawyer when advising on ADR?

A

The main elements are:

  • ensuring that a client is aware of ADR alternatives to litigation
  • providing objective information on relevant ADR options.
  • advising the client on their obligations under the overriding objective in relation to ADR.
  • If ADR is selected, getting clear instructions on the form of ADR to be used, objectives to be achieved.
  • assisting in the selection of an independent third party.
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25
Q

Can a lawyer make an agreement in settlement for a client?

A

Only if that lawyer has got the authority to settle, made in clear instructions set by the client.

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26
Q

What would happen if a lawyer reaches an agreement without authority to settle?

A

the client will be bound by the agreement, even if the client has not given consent. The client may make a negligence claim against the lawyer.

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27
Q

How can the judge encourage ADR?

A

Judges can question parties as to the steps taken to settle and encourage them to use ADR.

28
Q

What can the court do if a party does not engage with ADR where the could reasonably have been expected to do so?

A

impose cost sanctions

29
Q

Can the court compel the parties to use ADR?

A

The court can encourage parties to use ADR and make orders facilitating them to use ADR, but they cannot compel parties to use ADR where they do not wish to do so.

30
Q

What was found in Halsey in relation to the compulsion to use ADR?

A

That the compulsion would be an unacceptable constraint on the right to access to the court - violating Art.6 ECHR

31
Q

Can mediation ever be compulsory?

A

No, it cannot but the court can encourage mediation by pointing out its benefits, and directing the parties to meet and discuss mediation or by using a Ungley order.

32
Q

What is the strongest form of encouragement that the court possesses to make parties engage in ADR?

A

The court can require a party to engage in a Judicial Early Neutral Evaluation process even if the party is unwilling to do so.

33
Q

How can the court encourage ADR at a case management conference?

A

the court can direct the parties to consider ADR, make an Ungley Order and grant adjournment to enable settlement negotiations to take place

34
Q

What is the link between a direction questionnaire and ADR?

A

the questionnaire requires the representatives of a party to confirm that they have explained to their client the need to try and settle the claim, and the possibility of cost sanctions if they refuse to settle.

35
Q

what if the court considers the reasons for refusal of ADR to be weak?

A

the court does not have to accept the reasons put forward.

36
Q

What is the court’s power to grant a stay in case management?

A

the court can grant a stay in proceedings until a specified date or event. This helps to save expense whilst the the parties prepare for ADR.

During the stay no steps in the action are permitted.

When the stay is lifted, the position of the parties is the same as it was when the the stay was imposed.

37
Q

Do the parties need to keep the court informed on the outcome of ADR when proceedings are stayed?

A

Yes

38
Q

What powers does the court have where a party unreasonably refuses to engage in ADR?

A

The court can deprive a party of some or all of their costs

39
Q

Halsey v Milton Keynes General NHS Trust

A

the CoA held that the general rule that costs follow the event should not be departed from unless it is shown that the successful party acted unreasonably in refusing to agree to ADR.

40
Q

What factors should the court consider when determining whether a failure to engage in ADR was reasonable?

A

(1) the nature of the dispute
(2) the merits of the case
(3) the extent to which other settlement methods have been attempted
(4) whether the costs of the ADR process would be disproportionately high
(5) whether any delay in setting up and attending ADR would have been prejudicial.
(6) whether the ADR process had a reasonable prospect of success.

41
Q

Other situations where the Halsey factors apply?

A

where a claimant pursue proceedings rather than consider ADR through a compulsory shceme. The court will refuser to allow a claim to proceed if the action is brought only to recover costs.

Where a party has unreasonably refused to use ADR after judgment in order to settle costs which were the subject of detailed assessment proceedings.

42
Q

What should be considered if a party refuses ADR based on the merits of a case?

A

Whether the party’s assessment of the merits of the case is reasonable

43
Q

Can the court take into account any settlement offers that have been made and rejected?

A

Yes, if reasonable offers have been made by the successful party and rejected by the unsuccessful party, this might show that the unsuccessful party had an unreasonable view of the merits of their case.

44
Q

When will the disproportionately high costs of ADR be deemed to be important?

A

in cases where the sums at stake are relatively small.

45
Q

How many days will be deemed reasonable to refuse mediation?

A

if mediation is refused only 2 months before trial, three weeks before trial, 20 days before trial, or 13 days before the trial, then this will be deemed to be reasonable.

46
Q

Who bears the burden to show that ADR would have a reasonable prospect of success?

A

the unsuccessful party . This should not be an unduly onerous burden to discharge as they only have to show that there is a reasonable prospect that ADR would have succeeded

47
Q

Where have the courts refused to penalise a party for refusing to agree to mediation?

A

(1) where the relationship was so bad that mediation did not have a realistic prospect of success.
(2) where there was insufficient room for mediation to have real prospects in success in achieving compromise.
(3) where a party’s attitude and character was such that he or she was incapable of a balanced evaluation of the facts so that mediation had no real prospect of success.

48
Q

Will the burden be discharged if there is no objective reason to conclude that ADR had no reasonable prospect of success?

A

No

49
Q

Are the factors in Halsey exhaustive?

A

No

50
Q

Does Halsey apply where a party fails to initiate ADR?

A

No

51
Q

Does Halsey apply where a party refuses an offer to engage in ADR?

A

Yes

52
Q

What will be the result of a party failing to comply with the Pre-action Protocol or PD?

A

Costs consequences

53
Q

Is silence to an invitation to engage in ADR reasonable?

A

No, Halsey applies - unless in a rare case where ADR is so obviously inappropriate.

54
Q

What is held in the PD Pre-Action Conduct and Protocols in relation to a party’s silence on an invitation to engage in ADR?

A

silence might be considered unreasonable by the court and could lead to the court ordering that party to pay additional costs.

55
Q

Can silence be unreasonable if parties are engaged in other ADR processes?

A

No

56
Q

How can parties avoid sanctions?

A

(1) do not ignore an offer to engage in ADR
(2) respond promptly, i writing, giving full and clear reasons why ADR is not appropriate.
(3) Any correspondence should not completely close of ADR for a future date just because it is not appropriate at that moment in time.

57
Q

Can a court enforce a contract that provides an advance commitment to ADR?

A

Yes, so long as the clause is sufficiently clear and contractually binding.

58
Q

What are the advanatgages of pre-selecting ADR timing?

A

(1) it is easier to make an agreement to deal with a dispute prior to that dispute arising
(2) it can provide more control in terms of cost-effectiveness, timely dispute resolution and appropriateness
(3) pre-selection provides more certainty as to how to settle a dispute (making litigation less likely)
(4) it can make it easier to ensure confidentiality if a dispute arises.
(5) it can be easier to maintain a constructive approach and maintain relationships.

59
Q

What are the advantages of ADR at an early stage?

A

(1) this provides the best opportunity to save time and costs
(2) adjudicative ADR is effectively a direct alternative to litigation so should be selected before steps are taken in litigation.
(3) some non-adjudicative ADR is by its nature more effective.
(4) ADR may assist in clarifying issues even if it does not reach final settlement.
(5) a constructive approach prevents the views of the parties from becoming too entrenched

60
Q

What is the obligation in relation to ADR at the pre-action stage?

A

The parties are under an obligation to consider the use of ADR and take this seriously, otherwise they risk being met with an adverse costs order.

61
Q

Do parties need to review the position on ADR before issuing proceedings?

A

Yes.

62
Q

What is a legal representative asked to confirm on a Directions Questionnaire?

A

legal representatives will be asked to confirm that they have discussed ADR options and the possibility of costs sanctions have been explained to the client.

63
Q

How can the judge assess the appropriateness of ADR?

A

Through the statements of case, the answers to questionnaires, and the possibility that the case could be settled before further costs accrue.

64
Q

How are interim orders used to support the use of ADR?

A

(1) The court may order that a party or a party’s legal representative attend court, and this may be used to support the use of ADR
(2) on an application for an interim order the court may give directions to support the use of ADR
(3) the court can order trial of a preliminary issue if the ret of a case might then settle
(4) the court can give specific guidance on the progress of the a case.

65
Q

Is it reasonable for a party to refuse to agree to ADR until after a key court decision?

A

Yes, it may be reasonable.

66
Q

What factors are relevant to the timing of the use of ADR?

A

(1) The overriding objective
(2) The position regarding costs
(3) timeframe for reaching a solution
(4) the issues in the case
(5) the availability of information/ importance of evidence
(6) importance of interim applications
(7) strength of the case
(8) antagonism between the parties

Civil Litigation (24 decks)

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