Pre-action Steps Flashcards
Types of ADR
Mediation- conciliation Mediation- arbitration Expert appraisal Judicial appraisal Expert determination Final offer arbitration Early neutral evaluation
Mediation and conciliation
Third party receives statements from both parties to reveal areas of disagreement and gives opinion without prejudice
Mediation - arbitration
Mediation and if no luck then arbitration
Mediation
Mediator helps parties discuss issues and arrive at agreed solution
Arbitration
Arbitration weighs up case and makes a decision
Expert appraisal
Non binding expert opinion to influence negotiations
Judicial appraisal
Hear representations for both party and give preliminary view. Parties decide if this is binding or not
Expert determination.
Parties agree to accept this and breach is a breach of contract
Cannot be enforced as a court order and lacks power of arbitration
Can be sued for negligence
Final offer arbitration
Arbitrator will choose between two offers. Encourages sensible offers as each party wants their offer to be chosen
Early neutral evaluation
Parts submit docs and neutral party makes early evaluation of the facts and recommendation
Court can order parties to take this route
Conditional free agreement
Payable in specific circumstances
In writing
100% cap
Clear success fee
If client winds and opposition pays costs they don’t pay success fee. Client always pays this
If client looses they may still pay opponents costs and disbursements and their own disbursements
Consider after event insurance
When does after event insurance pay out
Only after litigation if they loose. Does not cover costs during course of litigation
Before event insurance
Ask client if they have this
Can a firm advise or arrangement after event insurance
Only if they are covered by FCA or an exempt firm
Damage based agreements
PSG agreed percentage of damages
In writing
Cannot enter until accurate info is provided
50% of damages cap. Incl VAT and counsel but not disbursements. Disbursements are recoverable from opponent.
DBA- Clients cannot be required to pay an amount other than the agreed fee net of….
- any costs and counsels fees that have been paid or are payable by another party to proceedings
And
- any expenses incurred by the solicitor after accounting for amount which has been paid or is payable by another party. This could include disbursements
Name of practice direction / protocol where there is no specific one to follow
Practice Direction - pre action conduct and protocols (PD- PAC)
13 pre action protocols
Construction and engineering
Personal injury
Defamation
Criminal disputes
Professional negligence
Judicial review
Disease and illness
Housing disrepair
Possession claims for rent arrears
Possession claims for mortgage or home
Purchase plan arrears for residential property
Physical state of commercial property at termination of tenancy (Dilapidations)
Low value personal injury traffic accidents
Low value personal injury employers liability and public liability
What will happen if practice direction or protocol is not adhered to
Parties are relieved of obligation to comply further
Proceedings are stayed until steps are taken
Sanctions - costs, deprive them of their monetary award, alter interest rates
Before commencing proceedings you must exchange info, why?
To understand each other’s possession Try to settle Reduce costs Consider ADR Try to resolve dispute Manage proceedings efficiently
Can you recover costs involved in complying with practice directions and pre action protocols
Only where they are proportionate. Disproportionate costs won’t be recoverable
Can you always rely on expert evidence
Only where the court gives permission. The fees recoverable may be limited
If there is no specific protocol, what info should be exchanged to comply with objectives in para 3 of PD- PAC
C to write to D - claim, facts, wants, how it is calculated
D to respond to C in reasonable time (14 days- max 3 months) disputed? Why and which parts? Counter claim?
Disclose key relevant documents
