Pre-action Steps

Question 1

Types of ADR

Answer 1

Mediation- conciliation 
Mediation- arbitration 
Expert appraisal
Judicial appraisal 
Expert determination 
Final offer arbitration
Early neutral evaluation

Question 2

Mediation and conciliation

Answer 2

Third party receives statements from both parties to reveal areas of disagreement and gives opinion without prejudice

Question 3

Mediation - arbitration

Answer 3

Mediation and if no luck then arbitration

Question 4

Mediation

Answer 4

Mediator helps parties discuss issues and arrive at agreed solution

Question 5

Arbitration

Answer 5

Arbitration weighs up case and makes a decision

Question 6

Expert appraisal

Answer 6

Non binding expert opinion to influence negotiations

Question 7

Judicial appraisal

Answer 7

Hear representations for both party and give preliminary view. Parties decide if this is binding or not

Question 8

Expert determination.

Answer 8

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

Question 9

Final offer arbitration

Answer 9

Arbitrator will choose between two offers. Encourages sensible offers as each party wants their offer to be chosen

Question 10

Early neutral evaluation

Answer 10

Parts submit docs and neutral party makes early evaluation of the facts and recommendation

Court can order parties to take this route

Question 11

Conditional free agreement

Answer 11

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

Question 12

When does after event insurance pay out

Answer 12

Only after litigation if they loose. Does not cover costs during course of litigation

Question 13

Before event insurance

Answer 13

Ask client if they have this

Question 14

Can a firm advise or arrangement after event insurance

Answer 14

Only if they are covered by FCA or an exempt firm

Question 15

Damage based agreements

Answer 15

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.

Question 16

DBA- Clients cannot be required to pay an amount other than the agreed fee net of….

Answer 16

• 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

Question 17

Name of practice direction / protocol where there is no specific one to follow

Answer 17

Practice Direction - pre action conduct and protocols (PD- PAC)

Question 18

13 pre action protocols

Answer 18

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

Question 19

What will happen if practice direction or protocol is not adhered to

Answer 19

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

Question 20

Before commencing proceedings you must exchange info, why?

Answer 20

To understand each other’s possession 
Try to settle 
Reduce costs 
Consider ADR 
Try to resolve dispute 
Manage proceedings efficiently

Question 21

Can you recover costs involved in complying with practice directions and pre action protocols

Answer 21

Only where they are proportionate. Disproportionate costs won’t be recoverable

Question 22

Can you always rely on expert evidence

Answer 22

Only where the court gives permission. The fees recoverable may be limited

Question 23

If there is no specific protocol, what info should be exchanged to comply with objectives in para 3 of PD- PAC

Answer 23

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