Topic 1- General Matters Flashcards
The Overriding Objective
Enabling the court to deal with cases justly and at a proportionate cost
What ways can ensure the overriding objective is met?
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
When must the court give effect to the overriding objective?
When it exercises any power given to it by the CPR, or interprets any rules
What is the duty of the parties to the overriding objective?
The parties are required to HELP the court to further the overriding objective
How can the court further the overriding objective through case management?
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
Benefits of Using ADR
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
Drawbacks of Using ADR
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
How may ADR be chosen immediately?
A clause in the contract may set out the use of ADR before litigation
Advantages of Pre-Selecting ADR Timing
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
Advantages of Selecting ADR at an Early-Stage
Provides the best opportunity to save time and costs
An early approach to ADR can mean the parties’ views are not entrenched
Drawbacks of Selecting ADR at an Early-Stage
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
Duty of the Parties in ADR
The parties are required to assist the court in furthering the overriding objective, which includes considering the use of ADR
Role of the Lawyer in Advising on ADR
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
Lawyer’s authority to settle in ADR
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
Is a client bound by a lawyer’s decision to settle?
The client will be bound due to the lawyer’s actual and ostensible authority to act on behalf
Halsey v Milton Keynes NHS Rule
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
What will the court consider if they decide to use the Halsey rule?
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
If a relationship between the parties was poor, will the court deem this to be reasonable in refusing ADR?
Potentially-
The relationship needs to be so bad that ADR had no real prospect of success
CPR Part 36
Offers to settle- helps settle the claim and gives certain costs benefits
Are the Halsey Factors exhaustive?
No, there are some more factors the court may consider for refusing to use ADR
Silence in the fact of invitation to use ADR
Silence in the face of an invitation to use ADR is deemed as UNREASONABLE
How may a party avoid sanctions for refusing to use ADR?
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
What did the case of Churchill v Merthyr Tydfil decide?
The court has the power to order parties to engage in ADR
What does a stay of proceedings mean?
A halt in court proceedings- usually to allow ADR to take place
What will the court do where claims are brought in breach of an agreement to resolve the dispute using expert determination?
There is a presumption for the court to stay the proceedings
When is a directions questionnaire required?
Before the case is allocated to a track, the court requires the parties to file and serve a directions questionnaire
What is included in a directions questionnaire?
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
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?
An open letter
This means that the Court can see in trial the reasoning behind, and it is not privileged
