settlement and ADR (week 8)

Question 1

who can make a part 36 offer?

Answer 1

can be made by either party

Question 2

when can a part 36 offer be made?

Answer 2

can be made at any stage of proceedings, including before proceedings are issued

Question 3

why do the normal rules of offer and acceptance not apply to part 36?

Answer 3

because part 36 is a self-contained procedural code which governs offers made pursuant to the procedure set out in part 36

Question 4

what is a calderbank offer?

Answer 4

an offer, usually communicated in writing, and written ‘without prejudice save as to costs’ such that it cannot be refered to the judge until costs are considered after trial but at that point can be relied on.

Question 5

what is the aim of a part 36 offer?

Answer 5

aim is to encourage parties to make and accept reasonable offers by offering a system of financial incentives and penalties

Question 6

when making a part 36 offer what is the relevant period that is specified?

Answer 6

period of not less than 21 days

Question 7

when is a part 36 offer deemed made?

Answer 7

when it is served on the offeree

Question 8

how can the offeree clarify a part 36 offer?

Answer 8

offeree can seek clarification of the terms of the offer within 7 days of service

Question 9

if trial has already started and a party wants to withdraw a part 36 offer - do they need the courts permission?

Answer 9

yes, need courts permission to withdraw the offer

Question 10

what are the 2 consequences of a part 36 offer?

Answer 10

• it is accepted
• it is not accepted (need to know whether court will impose a penalty after trial because offeree didn’t accept the offer and if so what that penalty might be.)

Question 11

how can a party accept a part 36 offer?

Answer 11

serve written notice of acceptance on the offeror
if the case is issued the acceptance also needs to be filed at court

Question 12

does an offer remain open after the relevant period has expired?

Answer 12

yes, an offer remains open for acceptance unless it has been withdraw. remains the case even after relevant period has expired, unless offer is expressed to be withdrawn automatically at the end of the relevant period.

Question 13

what is the cost consequence of acceptance of a part 36 in the relevant period?

Answer 13

the party who offered the part 36 is entitled to their costs up until the point that of the date the notice of acceptance was served on the offeror

Question 14

what are the cost consequences of acceptance of a part 36 outside the relevant period?

Answer 14

if accepted after expiry of relevant period:
- court will determine liability for costs unless parties agree them
BUT
court must unless it considers it unjust to do so, order
- C to be awarded costs up to date of relevant period expiry and
- offeree pay offeror’s costs for period from expiry of relevant period to date of acceptance

Question 15

can you use a part 36 claim for part of the claim only?

Answer 15

yes you can use it for part of the claim only

Question 16

how long does a D have to pay the offered sum of money if C accepts part 36?

Answer 16

14 days

Question 17

what is the trigger if Ds part 36 offer was not accepted?

Answer 17

where C fails to obtain judgment more advantageous than a Ds part 36 offer
(EG, need to get a better offer at trial)

Question 18

what is the trigger if Cs part 36 offer was not accepted?

Answer 18

judgment again D is at least as advantageous to the C as the proposals contained in the C’s part 36 offer.
(eg, where C does the same or better at trial than its own part 36 offer then the failure to accept offer will have consequences)n

Question 19

what is negotiation?

Answer 19

communication process between parties that is intended to reach a compromise or agreement to satisfaction of both parties

Question 20

what is mediation?

Answer 20

confidential process intended to facilitate resolution of disputes through medium of an impartial third party (mediator).
be in two different rooms and the mediator goes between the two rooms to try to reach an agreement between the parties.

Question 21

what is arbitration?

Answer 21

process where dispute is resolved by an impartial adjudicator who has the decision and that is final and binding decision.

Question 22

what are the 2 situations where the decision to arbitrate arise?

Answer 22

a) when negotiating a contract the parties may decide to include an arbitration clause to cover disputes arising in the future
b) when dispute arises, parties can choose to deal with it via arbitration

Question 23

what is med-arb?

Answer 23

parties agree to mediate first and if that doesnt work they move on to arbitration

Question 24

what is the difference between an expert appraisal and an expert determination?

Answer 24

an expert appraisal doesnt deliver a binding decision (just an opinion)
expert determination - expert gives a binding decision

Question 25

what is conciliation?

Answer 25

involves an independent third party (neutral) who helps parties to resolve their dispute. facilitative like mediation but sometimes involves evaluation too

Question 26

what stage in trial are parties required to consider ADR?

Answer 26

by practice direction on pre-action conduct and on various pre-action protocols. must be considered as part of case management process

Question 27

can the court compel a party to engage in ADR?

Answer 27

no they cannot compel but they can stay proceedings to tell parties to go and do ADR. they provide info about ADR and encourage parties to consider ADR

Question 28

who can discontinue a claim?

Answer 28

only a claimant can - C is choosing not to pursue the claim against D any further

Question 29

what are the 2 major consequences of discontinuance of a claim?

Answer 29

1. it ends the proceedings in relation to the claim / part of claim discontinued 2. the C is liable to pay the D's costs up to the point of discontinue, unless court orders otherwise

Question 30

when is the court's permission needed to discontinue proceedings?

Answer 30

normally in exception circumstances - eg C has already received some sort of remedy such as an interim injunction or an interim payment

Question 31

what is the effect of costs for discontinuance of a claim?

Answer 31

claimant will normally be required to pay the opponent's costs in relation to any claim discontinued

Question 32

what is the procedure for discontinuance? discontinuance is usually achieved by....

Answer 32

filing a notice at court and serving it on all other parties

Question 33

when does discontinuance take effect?

Answer 33

upon service of the notice of discontinuance

Question 34

what happens if a party is successful in litigation but refused to engage in ADR? (in relation to costs)

Answer 34

court considers whether refusal was reasonable, and if not, court might impose penalty. burden of proof is on unsuccessful party to show the court why it should depart from general rule on costs to deprive some or all of its costs on grounds it refused to agree to ADR.