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Civil Litigation > Part 36 Settlement And ADR > Flashcards

Part 36 Settlement And ADR Flashcards

1
Q

What is the role of Part 36 in the CPR?

A

Part 36 encourages parties to settle by describing a kind of offer, setting out consequences for acceptance, and different consequences if not accepted and the matter proceeds to trial.

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2
Q

When can a Part 36 offer be made?

A

Part 36 offers can be made at any stage of proceedings, including before proceedings are issued.

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3
Q

What is a Calderbank offer?

A

A Calderbank offer is an offer made ‘without prejudice save as to costs’, which cannot be referred to the judge until costs are considered after trial.

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4
Q

What must a valid Part 36 offer include?

A

A valid Part 36 offer must be in writing, state it is made pursuant to Part 36, specify a relevant period of at least 21 days, and state whether it relates to the whole or part of the claim.

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5
Q

How is a Part 36 offer accepted?

A

A Part 36 offer is accepted by serving written notice of acceptance on the offeror.

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6
Q

What happens if a Part 36 offer is accepted?

A

The claim will be stayed and the settlement sum must usually be paid within 14 days.

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7
Q

What are the cost consequences of accepting a Part 36 offer within the relevant period?

A

If accepted within the relevant period, the claimant is entitled to costs of the proceedings up to the date of acceptance.

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8
Q

What are the cost consequences of accepting a Part 36 offer after the relevant period?

A

If accepted after the relevant period, the court will determine costs unless agreed, but the claimant is entitled to costs up to the expiry of the relevant period.

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9
Q

What triggers consequences for not accepting a defendant’s Part 36 offer?

A

The trigger occurs if a claimant fails to obtain a judgment more advantageous than the defendant’s Part 36 offer.

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10
Q

What does ‘more advantageous’ mean in the context of a Part 36 offer?

A

‘More advantageous’ means better in money terms, however small the amount.

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11
Q

What happens if a claimant fails to obtain a judgment more advantageous than a defendant’s Part 36 offer?

A

The claimant will face consequences, including paying the defendant’s costs from the date the relevant period expired and interest on those costs.

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12
Q

How is the comparison for ‘more advantageous’ determined?

A

The comparison is made at the date of judgment, ignoring interest after that date.

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13
Q

What costs does the claimant bear if they fail to accept a defendant’s Part 36 offer?

A

The claimant must bear their own costs for the period after the relevant period expired.

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14
Q

What are the consequences if the claimant does not meet the ‘trigger’?

A

If the claimant does better at trial than the defendant’s offer, the defendant’s Part 36 offer has no effect.

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15
Q

What is the ‘trigger’ for a claimant’s offer?

A

The trigger is when ‘Judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant’s Part 36 offer.’

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16
Q

What penalties does a defendant face if they fail to accept a claimant’s Part 36 offer?

A

The court must order interest on the award, costs assessed on the indemnity basis, interest on those costs, and an additional amount based on a percentage of the award.

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17
Q

How is the additional amount calculated if the claim does not have a money-claim?

A

The additional amount is calculated using the total amount of costs awarded to the claimant instead of the award.

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18
Q

What factors does the court consider when determining if imposing penalties is unjust?

A

The court considers the terms of any Part 36 offer, the stage in proceedings, information available to parties, conduct of parties, and whether the offer was a genuine attempt to settle.

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19
Q

What happens if an offer is made within 21 days of trial?

A

There will be no Part 36 consequences unless the court abridges the relevant period.

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20
Q

What must a party do to get full costs protection under Part 36?

A

Make the offer more than 21 days before trial and leave the offer open.

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21
Q

What if both parties have made Part 36 offers that were not accepted?

A

Each offer is considered in turn based on the judgment amount.

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22
Q

What are the potential outcomes if the judge awards £4 million?

A

The claimant’s offer takes effect as they have won more than their offer.

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23
Q

What happens if the judge awards £1 million?

A

The defendant’s offer takes effect as the claimant has won the same or less than the defendant’s offer.

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24
Q

What is the summary of the consequences of unaccepted offers?

A

Claimants’ and defendants’ offers have different consequences based on whether the judgment is more advantageous than the offers.

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25
Q

What is ADR?

A

ADR stands for Alternative Dispute Resolution, which encompasses various methods for resolving disputes outside of court.

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26
Q

What are the types of ADR?

A

The types of ADR include: Negotiation, Mediation, Arbitration, Med-arb, Early neutral evaluation, Expert determination, and Conciliation.

27
Q

What is Negotiation?

A

Negotiation is a communication process between parties intended to reach a compromise or agreement to the satisfaction of both parties.

28
Q

What is Mediation?

A

Mediation is a confidential process facilitated by an impartial third party to resolve disputes. The mediator does not have authority to make binding decisions.

29
Q

What is Arbitration?

A

Arbitration is a process where an impartial adjudicator resolves a dispute, and the parties agree that the decision will be final and binding.

30
Q

What is Med-arb?

A

Med-arb is a process where parties first attempt mediation, and if unresolved, proceed to arbitration for a binding determination.

31
Q

What is Early Neutral Evaluation?

A

Early Neutral Evaluation is a process where an independent party provides a non-binding assessment of the dispute to influence future settlement discussions.

32
Q

What is Expert Determination?

A

Expert Determination involves appointing an independent expert to make a binding decision on a dispute, typically suitable for technical matters.

33
Q

What is Conciliation?

A

Conciliation involves an independent neutral third party helping parties resolve their dispute, often part of a statutory or regulatory scheme.

34
Q

What are the advantages of using ADR?

A

Advantages of ADR include court expectations, better relationships, cost-effectiveness, time savings, privacy, less disruption, a range of outcomes, risk reflection, and greater party control.

35
Q

What does the court expect regarding ADR?

A

The court expects parties to explore ADR and can impose sanctions if they do not act reasonably in considering it.

36
Q

How does ADR preserve relationships?

A

ADR can help maintain business and personal relationships by considering emotional dimensions and future interactions, unlike court proceedings.

37
Q

How can ADR be less expensive?

A

Successful ADR can lead to resolutions at a lower cost compared to litigation.

38
Q

How does ADR save time?

A

ADR can lead to quicker conclusions than litigation.

39
Q

What is the significance of privacy in ADR?

A

ADR processes are private and confidential, unlike public court proceedings.

40
Q

How does ADR involve parties more actively?

A

ADR allows clients greater involvement in the process, making it less alienating than litigation.

41
Q

When should a party engage in ADR?

A

Engagement in ADR may be specified in a contract or depend on the timing of the dispute, such as before court proceedings.

42
Q

How does the court encourage ADR?

A

The court can provide information about ADR and encourage its consideration, but cannot compel participation.

43
Q

What is the usual costs order in English court cases?

A

Typically, the unsuccessful party pays the successful party’s costs, but this is at the court’s discretion.

44
Q

What factors influence the court’s costs order?

A

The court considers the conduct of the parties, including their engagement with ADR, when making costs orders.

45
Q

What should a party do upon receiving an ADR offer?

A

A party should consider the offer, respond promptly in writing, and explain their decision regarding ADR.

46
Q

What are the implications of refusing to engage in ADR?

A

Refusing ADR may lead to costs penalties if deemed unreasonable, especially if the dispute is suitable for ADR.

47
Q

What is the benefit of engaging in ADR early?

A

Engaging in ADR early can lead to greater cost savings and a better starting point for court proceedings.

48
Q

What must a party do within 21 days of a proposal for ADR?

A

A party must serve a witness statement giving reasons.

The witness statement must not be shown to the trial judge until questions of costs arise.

49
Q

What is the purpose of producing a witness statement in ADR?

A

It creates a record for the court to consider regarding costs and encourages identifying obstacles to ADR.

50
Q

What are the benefits of engaging in ADR early?

A

It leads to greater cost savings in the event of success and improves the initiation of court proceedings.

51
Q

What are the potential benefits of engaging in ADR late?

A

Parties may have a better understanding of issues, evidence, and likely outcomes at trial.

52
Q

What must parties consider as part of the case management process?

A

Parties are required to consider ADR by the practice direction on pre-action conduct and various pre-action protocols.

53
Q

What can the court do if a party unreasonably refuses to engage in ADR?

A

The court can penalise the party in costs, considering various factors before deciding.

54
Q

Can the court compel a party to engage in ADR?

A

No, the court cannot compel a party to engage in ADR.

55
Q

What are the ways a claim can end?

A

Claims can end through success, settlement, judgment after striking out, admission, or discontinuance.

56
Q

Who can discontinue a claim?

A

Only a claimant can discontinue a claim at any time.

57
Q

Can a claimant discontinue part of a claim?

A

Yes, a claimant can discontinue part of a claim or against specific defendants.

58
Q

What are the consequences of discontinuance?

A

It ends the proceedings for the claim or part discontinued, and the claimant is liable for the defendant’s costs unless ordered otherwise.

59
Q

When is court permission needed for discontinuance?

A

Permission is needed in exceptional circumstances, such as when the claimant has received a remedy.

60
Q

What is the procedure for discontinuance?

A

File a notice of discontinuance at court and serve a copy on every party.

61
Q

When does discontinuance take effect?

A

Discontinuance takes effect from the date of service.

62
Q

What happens upon discontinuance regarding costs?

A

A costs order is deemed to have been made in the defendant’s favour on the standard basis.

63
Q

What are the key points about discontinuance?

A

A claimant can discontinue a claim, which ends the claim, and they will normally pay the opponent’s costs.

Civil Litigation (9 decks)

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