Syllabus Area 1 - General Matters Flashcards
What is the overriding objective?
For cases to be dealt with in a fair and proportionate way. Court must take into consideration the complexity, value and parties financial positions in the case. The court must also have regard to the allocation of courts resources. Court must also have regard to parties being on equal footing and participating in proceedings fully.
What is the application by the court of the overriding objective?
Must have regard at all times unless involving terrorism or contrary to public interest
What is the duty on the parties?
To further the overriding objective by co operating and being fair & proportionate to costs.
What is involved in the Courts duty to manage cases?
Encouraging corporation, identifying early issues & disposing, ordering/facilitating ADR, helping settlement, fixing timetables, justify costs and dealing with multiple aspects once
How does the Court encourage use of ADR?
Cost incentive.
What does Churchill promote?
Court has power to order parties to engage in ADR & can order a stay of proceedings to engage with ADR
What does Halsey promote?
Court should encourage ADR but cannot compel parties to engage in this - this has been overturned.
What factors are to be considered in the power to order ADR through Churchill?
The form of ADR, whether it was to be successful, urgency of case, whether delay would cause limitation issues, financial resources of parties, whether there is an imbalance of bargaining power, reasons by parties to engage in ADR/to not engage in ADR.
How do we encourage parties to use ADR?
Provide information and encourage facilitation ADR and costs incentive.
When can ADR be used?
Before, commencing or instead of proceedings
What types of ADR are there?
Negotiation, mediation, arbitration, med/arm, ENE, expert determination, expert appraisal, conciliation.
What are non-adjudicative and types?
Where third party may be involved but it is not binding - mediation, negotiation, expert appraisal.
What are adjudicative?
Third party involved who make binding decision - arbitration, ENE, expert determination
What is negotiation?
Communicative process where both parties try to reach a conclusion.
What is mediation?
Third party mediator who is impartial moves between parties in order to reach a settlement which is confidential - court does not need to know.
What is ENE?
Expert appointed by parties evaluates the case and makes an evaluation which can influence proceedings.
What is med/arb?
If mediation doesn’t work, arbitration.
What is arbitration?
Third party called adjudicator involved where makes binding decision under jurisdiction can be through clause or choice.
What is expert determination?
Usually if need technical advice, individuals appoint third party, they make binding determination on case which can influence proceedings.
What is expert appraisal?
Just opinion on matter.
What is conciliation?
No definition but usually a statutory scheme e.g ACAS.
What are the general motivations for using ADR?
Cost effective, saves time for parties/court, private, less disruption, retains relationship and parties more involved.
When is ADR not appropriate?
Not many cases where it is not appropriate.
What is the role and responsibility for lawyers in ADR?
Should encourage and facilitate ADR if needed - should explain what it is - what types. If want to pursue, should help and help settle within their authority by involving client.
What is authority to settle?
This is where the lawyer must act within authority to settle the case but involving client at all times.
What is the general approach of the courts to ADR?
Litigation should be last resort and ADR should be considered at all material times.
What types of judicial encouragement is there for ADR?
Cost incentive: parties who have positive ADR behaviour and punish poor ADR behaviour.
What happens if party unreasonably refuses ADR?
Costs will be on the unreasonable party.
What is the BOP in an unreasonably acting party towards ADR?
The burden of proof lies on unsucessful party to depart against usual costs to deprive successful party of money due to refusal of ADR.
What case management powers are there for ADR?
Under Churchil, courts can manage parties to engage in ADR and will want to know what steps have been taken to explore ADR.
How can ADR be directed in directions questionnaire?
Parties can say in DQ whether they have complied with ADR or not + reasoning. Court can direct at directions conference to engage with ADR + ask what steps already, if has not explored ADR, can stay proceedings to engage with it.
What can the court do for ADR?
generally stay proceedings under Churchill in order for parties to engage fully with ADR
What are the other facts considered by court in use of ADR?
Nature of dispute, merits of case, extent to which ADR has been attempted, whether ADR would be successful, financial positions of parties to attempt ADR, would cost of ADR be disproportionate.
What happens if C fails to initiate ADR process?
Courts take a different approach when a C fails to initiate ADR process, the court will not blankly refuse award of costs to a successful party simply because it did not suggest ADR.
What happens with a silence in the face of ADR?
Will be considered unreasonable and sanctioned costs.
What are the practical steps parties should take to avoid sanctions?
Follow PDPA if it asks about ADR, if they are offered ADR by other party, should comply and respond prompt. If wishes to deny ADR, they must explain reasoning why in a written letter and what circumstances it would consider ADR use.
What power does the court have over ADR?
Churchill allows for the court to stay proceedings to engage with ADR and has power to order parties to engage with it.
What did Halsey say?
Churchill has recently overturned Halsey but Halsey said that court cannot compel parties to engage in ADR.
What is the usual timing of ADR?
Depending on circumstances, if there is a contract where ADR is specified, then it can be used any point. Some forms of ADR can only be at some points.
What are the procedural factors relevant to the timing of ADR?
PDPA may influence when to use ADR if it specifies, Precedent H requires inclusion of negotiation/when advising on settlement, DQ requires legal reps to confirm parties have been explained to about ADR/the use/costs sanctions otherwise.
What are the practical factors relevant to timing saying earlier is better?
Saving costs/court fees/court time, better relationships, understanding evidence earlier on/positions of parties earlier on.
What are the practical factors relevant to timing saying later is better?
Better understand of cases, better understand of evidence, if too early may waste money on ADR not on a genuine case or not suitable for ADR.
What is the financial worth of the claim?
Its value.
What do you disregard when working out which court?
CN, interest, costs, social security, any counterclaim.
If C is claiming more than £100,000, what do you need to do?
State on CF.
Which court?
PD7A says whichever the issue is to be tried.
What to consider for HC?
Complexity, costs, financial value, need of HC judge and public importance > may also be enactment to say which court.
What happens if C applies to wrong court?
Can transfer but may have to pay costs > also may have 25% costs awarded penalty at courts discretion.
Who does the OO apply to?
It applies to the court (CPR 1.2), there is a duty on the parties to further the overriding objective (CPR 1.3) and the court has a duty to actively manage the case (CPR 1.4).
How does the court enable the matter to be dealt with justly and proportionately?
Actively managing the case by encouraging co operation of parties, deciding early issues> disposing of those they can, deciding order of issues and encouraging ADR.
How can the court encourage parties to settle?
Using cost incentive, can order ENE or mediation and can stay proceedings for engagement with ADR.
What is the role of a mediator?
To stay impartial, no bias, keep parties informed, explain what mediation is and their role, inform parties of what they are agreeing on, keeping momentum going, enable to see both sides, keeping confidential.
In mediation, what happens?
mediation bundle/exchange positions/legal alternatives discussed, opening statement by mediator and parties, break out session with solicitors playing a big part, may have partial/complete resolution.
How can a mediation agreement be enforced?
Via contract or if a case is pending it can be by consent order.
What are the non adjudicative ones?
Non-binding and usually no third party influence > mediation, ENE, negotiation, expert appraisal.
What are adjudicative?
Binding and third party influence > arbitration, expert determination and conciliation
How does expert determination work?
Written submissions, maybe advocacy and supporting docs.
What if party commences proceedings after expert determination?
Court may stay proceedings or innocent party entitled to damages.
What is arbitration covered by?
AA 1996
What ones can be in contract?
Mediation and arbitration .
