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EHAPC > PE Conflict Avoidance, Management and Dispute Resolution Procedures > Flashcards

PE Conflict Avoidance, Management and Dispute Resolution Procedures Flashcards

1
Q

What are ways to avoid dispues?

A
  1. Risk Managament
  2. Early warning signs
  3. Partnering techniques
  4. Clear and robust client briefings
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2
Q

What is 1. risk management? (a way to avoid dispute)

A

Identifying the causes of disputes to minimise or avoid them

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3
Q

What are 2. early warning signs in relation to dispute avoidance? (a way to avoid dispute)

A

Identifying early symptoms of problems

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4
Q

What are 3. partnering techniques? (a way to avoid dispute)

A

Common agreement/commitment by stakeholders to pursue mutual goals and objectives prior to commencing work on a project or instruction

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5
Q

How can 3. partnering help to avoid disputes? (a way to avoid dispute)

A

Identifies potentials risks and manages sources of conflict at the outset

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6
Q

What is Alternative Dispute Resolution?

A

Procedures to resolve conflicts between parties without resorting to litigation

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7
Q

What is litigation?

A

Process of parties taking legal action through the Courts

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8
Q

What governs litigation in the Courts?

A

Civil Procedure Rules

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9
Q

Can litigation be settled out of Court?

A

Yes - to avoid further costs based on the risks of proceeding to judgement

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10
Q

What are the issues with litigation?

A
  1. Public process so no confidentiality
  2. Strict procedures
  3. Costly
  4. Lay judges may not have expertise in property
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11
Q

What are the benefits of ADR?

A
  1. Cheaper than litigation
  2. Quicker than litigation
  3. Flexible process not governed by the Civil Procedure Rules
  4. Can be confidential
  5. Can involve specialists/experts rather than lay judges
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12
Q

What is mediation?

A

Confidential process where a neutral party facilitates negotiations between the parties

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13
Q

What is conciliation?

A

Confidential process where a neutral party facilitates negotiations between the parties and expresses their opinion on the dispute

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14
Q

What is adjucation?

A

Statutory UK dispute resolution procedure to provide an interim binding decision

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15
Q

What is arbitration?

A

Third party receives written evidence or verbal evidence at hearing from the parties’ representatives and makes a legally binding decision

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16
Q

What is expert determination?

A

Third party provides an expert opinion on the dispute

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17
Q

What is the relevant timeframe for adjucation?

A

28-42 days

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18
Q

Can mediation procedures be disclosed to Court?

A

No - they are undertaken on a without prejudice basis

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19
Q

What legislation introduced statutory adjucation?

A

Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996)

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20
Q

What happens after an adjucation interim decision is made?

A

Refer dispute to another process e.g. litigation, arbitration or mutual agreement

21
Q

What is adjucation often described as?

A

Pay first, argue later mechanism

22
Q

What is the aim of adjucation?

A

Preserve cashflow during construction

23
Q

What type of claim is adjucation appropriate to use for?

A
  1. Interim payments
  2. Delay and disruption of the works
  3. Extensions of time for completion of the works
  4. The final account
  5. Breach of contract
  6. Termination of contract
  7. Professional negligence
24
Q

What Act is Arbitration governed by?

A

Arbitration Act 1996

25
Q

Can the parties agree the procedure for an Arbitration?

A

Yes - subject only to public interest safeguards and involvement of Arbitrator if they can’t agree

26
Q

Which Act is Expert Determination governed by?

A

None - it’s purely governed by contract

27
Q

Does an Arbitrator have a duty to investigate all relevant evidence?

A

No - they act on evidence submitted by the parties, but can draw attention to matters the parties may not be aware of

28
Q

Does an Expert have a duty to investigate all relevant evidence?

A

Yes

29
Q

Do the parties have to submit their own expert witness representations to an Expert?

A

No - unless the parties’ agree otherwise

30
Q

What is disclosure and who can order it?

A

Arbitrator’s power to order disclosure of evidence

31
Q

Can a third party require wintess attendance through the Courts?

A

Yes - only an Arbitrator can

32
Q

Can a lease require an Arbitrator’s costs to be split 50:50?

A

No - an Arbitrator always has full discretion to Award costs

33
Q

Does an Expert have power to determine costs?

A

Maybe - if the lease directs or the parties agree

34
Q

Can you appeal an Arbitration Award?

A

Yes - under grounds S67-69 within 28 days of the Award being published

35
Q

Under what grounds can you appeal an Abritration Award?

A
  1. Outside jurisdiction
  2. Serious irregularity
  3. Point of law
36
Q

Can you sue an Expert for negligence?

A

Yes - can sue for damages/loss, but the Court won’t interfere with the determination

37
Q

Will disclosure always be ordered?

A

No - only where it is proportionate and appropriate

38
Q

What do RICS provide ADR services for?

A
  1. Commercial property rent reviews
  2. Construction adjucation
  3. Other construction or property disputes
  4. Rural rent reviews
  5. Mediation
  6. Non-rent disputes
  7. Dilapidations dispute
  8. Neighbourhood dispute
39
Q

What were the Woolf reforms?

A

ADR should be considered in all court cases, but not necessarily used if it is not appropriate or reasonable

40
Q

What were the Jackson reforms?

A

Reforms to reduce civil litigation and costs and increase access to justice

41
Q

What are changes under the Jackson reforms?

A
  1. File cost budget
  2. File disclosure report
  3. Changes to part 36 offers
  4. Stringent timescales introduced
42
Q

What does P35 of the CPR relate to and what is it?

A

Hot tubbing/concurrent evidence - judge chairs discussion with experts of same discipline/counsel with agenda based on Joint Statement

43
Q

What is PACT?

A

Arbitration/Expert determination for agreeing lease renewal disputes out of Court

44
Q

What were the implications of Jones v Kaney (2011)?

A

Expert witness can be sued for dishonesty or negligent misstatements

45
Q

When acting as an Expert Witness, who is your duty towards?

A

The Court

46
Q

Do you act as an Expert Witness in negotiations?

A

No - you act as a negotiator/advisor

47
Q

Can an Expert Witness’ fee basis be performance-based/condition?

A

No

48
Q

Do RICS provide any guidance on ADR procedures?

A

Yes

49
Q

Do you need to check for COI if you are entering ADR/litigation proceedings?

A

Yes always

EHAPC (41 decks)

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