Topic 1- General Matters

Question 1

The Overriding Objective

Answer 1

Enabling the court to deal with cases justly and at a proportionate cost

Question 2

What ways can ensure the overriding objective is met?

Answer 2

Ensuring that the parties have an equal footing

Saving expenses

Dealing with cases in which are proportionate (to the amount of money involved)

Ensuring it is dealt with expeditiously and fairly

Allotting an appropriate share of court resources
Enforcing compliance with rules

Question 3

When must the court give effect to the overriding objective?

Answer 3

When it exercises any power given to it by the CPR, or interprets any rules

Question 4

What is the duty of the parties to the overriding objective?

Answer 4

The parties are required to HELP the court to further the overriding objective

Question 5

How can the court further the overriding objective through case management?

Answer 5

Encouraging the parties to co-operate with each other
Identifying the issues early
Deciding which issues need full investigation
Encouraging the parties to use ADR
Fixing timetables
Encouraging parties to settle

Question 6

Benefits of Using ADR

Answer 6

Lower costs
Quicker than litigation
Can choose the forum of ADR
Have more control of the process
Greater confidentiality and privacy
May protect future relationships
A wider range of issues can be considered

Question 7

Drawbacks of Using ADR

Answer 7

If a legal precedent needs to be set- only a court can do this
If a court order needs to be made
If the case is extremely complex, may need the court
High levels of animosity between parties
Enforcement of the decision

Question 8

How may ADR be chosen immediately?

Answer 8

A clause in the contract may set out the use of ADR before litigation

Question 9

Advantages of Pre-Selecting ADR Timing

Answer 9

It is easier to make an agreement to deal with a dispute
Can provide more control over costs, etc
Pre-selection provides more certainty as to how a dispute can be settled
A specific body can be identified to conduct ADR
Ensures confidentiality

Question 10

Advantages of Selecting ADR at an Early-Stage

Answer 10

Provides the best opportunity to save time and costs
An early approach to ADR can mean the parties’ views are not entrenched

Question 11

Drawbacks of Selecting ADR at an Early-Stage

Answer 11

May waste a lot of time and money if it is unsuccessful
Unsuccessful ADR may exacerbate disputes
May be too difficult to evaluate the case at an early stage

Question 12

Duty of the Parties in ADR

Answer 12

The parties are required to assist the court in furthering the overriding objective, which includes considering the use of ADR

Question 13

Role of the Lawyer in Advising on ADR

Answer 13

Must make are the client is sufficiently aware of ADR alternatives to litigation
Provide info on ADR, such as the pros and cons; costs; sanctions

Question 14

Lawyer’s authority to settle in ADR

Answer 14

A lawyer can only settle on behalf of his party where his instructions have been SUFFICIENTLY CLEAR
They should be held within the parameters of the client’s instructions

A lawyer cannot exceed their limit on authority

Question 15

Is a client bound by a lawyer’s decision to settle?

Answer 15

The client will be bound due to the lawyer’s actual and ostensible authority to act on behalf

Question 16

Halsey v Milton Keynes NHS Rule

Answer 16

The costs in a case should not be departed from unless it is shown the successful party acted unreasonably in refusing to agree to ADR

Question 17

What will the court consider if they decide to use the Halsey rule?

Answer 17

The nature and merits of the dispute
The extent to which ADR has been attempted
Whether the cost of ADR would have been disproportionately high
Whether any delay setting up ADR would have been prejudicial
Whether ADR would have been successful

Question 18

If a relationship between the parties was poor, will the court deem this to be reasonable in refusing ADR?

Answer 18

Potentially-

The relationship needs to be so bad that ADR had no real prospect of success

Question 19

CPR Part 36

Answer 19

Offers to settle- helps settle the claim and gives certain costs benefits

Question 20

Are the Halsey Factors exhaustive?

Answer 20

No, there are some more factors the court may consider for refusing to use ADR

Question 21

Silence in the fact of invitation to use ADR

Answer 21

Silence in the face of an invitation to use ADR is deemed as UNREASONABLE

Question 22

How may a party avoid sanctions for refusing to use ADR?

Answer 22

Do not ignore the offer to engage in ADR- at least respond promptly in writing

Give clear and full reasons why ADR is not appropriate

Question 23

What did the case of Churchill v Merthyr Tydfil decide?

Answer 23

The court has the power to order parties to engage in ADR

Question 24

What does a stay of proceedings mean?

Answer 24

A halt in court proceedings- usually to allow ADR to take place

Question 25

What will the court do where claims are brought in breach of an agreement to resolve the dispute using expert determination?

Answer 25

There is a presumption for the court to stay the proceedings

Question 26

When is a directions questionnaire required?

Answer 26

Before the case is allocated to a track, the court requires the parties to file and serve a directions questionnaire

Question 27

What is included in a directions questionnaire?

Answer 27

Whether the parties have tried to settle the claim, and whether they would like to stay the claim for one month to try to settle it

Question 28

If a party does not wish to engage in ADR, but has valid reasoning, what type of letter is best to send to the other party giving reasons?

Answer 28

An open letter

This means that the Court can see in trial the reasoning behind, and it is not privileged