Unit 1

Question 1

What is a lawyer’s role in mediation?

Answer 1

At the mediation, lawyer will only provide advice to their client and will not negotiate a settlement.

– Lawyer chooses venue, mediator, briefs their clients on the mediation process and attends the mediation.

Question 2

Is it possible to return to mediation even atfer court proceedings have begun?

Answer 2

Yes.

Question 3

What are the key advantages of mediation?

Answer 3

1) Confidentiality
2) Qucik
3) Flexible
4) Solution can be anything
5) Ability to withdraw at any time.

Question 4

What are the key disadvantages of mediation?

Answer 4

1) No formal disclosure procedures – can risk that parties do not know all the facts

2) Confidentiality can be a disadvantage where the client wants to vindicate their reputation

3) Agreement is not binding and client cannot enforce this like a court judgement. (However, if the parties enter inot an agreement, this constitues a contract and so can be sued under breach of contract)

Question 5

What are the general principles of arbitration?

Answer 5

A) Object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense

B) Parties should be free to agree how their disputes are resolved

C) Court should not interevene

Question 6

Advantages of arbitration over litigation?

Answer 6

1) Cost
2) Speed
3) Confidentiality
4) Decision of the arbitrator is binding
5) Enforcement of the decision is available through the courts.

Question 7

Once a decision has been made under arbitration, can this be enforced through the courts?

Answer 7

Yes.

Question 8

What are the 2 types of arbitration?

Answer 8

1) Ad hoc arbitration – Conducted without the assistance of an arbitral institution.

2) Institutional Arbitration – Conducted according to the set rules of an institution like the LCIA with their assistance.

Question 9

When does arbitration generally arise?

Answer 9

Where there is a valid arbitration clause in a contract between the parties.

Question 10

Where there is a dispute about a contract, and there is a binding arbitration clause, can the parties go straight to court?

Answer 10

No. They must go to arbitration first.

Question 11

What is required for a valid arbitration clause?

Answer 11

1) Be in writing, or evidenced in writing

2) Refer present and future “disputes” to arbitration – Arbitration clause should not refer to “claims”.

Question 12

There is a presumption that the arbitration clause is severed from the rest of the contract. (i.e., is valid)

Question 13

What are the duties of the arbitrator under s. 33 AA?

Answer 13

1) To act fairly, impartially, avoid unecessary delay or expense and to provide a fair means for the resolution of the dispute

2) To declare an interest if they have had previous dealings with a party or has prior knowledge of the dispute. If the other side objects, they should decline to act.

Question 14

Can the arbitrator duties under s 33 AA be excluded?

Answer 14

No.

Question 15

What general duty are the parties to the arbitration subject to?

Answer 15

To do “all things necessary for the proper and expeditious (speedy) conduct of the arbitral proceedings”. This means complying, without delay, with the tribunal’s directions and orders, and, if necessary, approaching a court without delay to determine any preliminary question of jurisdiction or law.

Question 16

What are the potential sanctions for non-compliance?

Answer 16

– Tribunal may make an award which dismisses the claim or continues proceedings without that party’s involvement.

– Tribunal may make peremptory orders that would result in sanctions for further failure to comply

– Peremptory orders may be enforced by application to the court.

Question 17

Applications to the court under a tribunal – what is the court’s power?

Answer 17

The court may make the same kinds of orders in arbitral proceedings as it could make in its own proceedings, on the application of a party, but only to the extent that the tribunal lacks power or is unable to act effectively.

– Court may determine any question of law.

Question 18

What are the 2 types of arbitration hearings available?

Answer 18

1) Adversarial – Each party conveying their arguments.

2) Inquisitorial – Tribunal takes a more active role in questioning parties and investigating matters.

Question 19

What type of awards can a tribunal of arbitration offer?

Answer 19

• Payment of a sum of money
• An order for a party to do (or refrain from) doing something (injunction)
• Order of specific performance (other than a contract in relation to land); and Rectification or setting aside a deed or other document.

Question 20

Is the tribunal entitled to withhold delivery of an award until the fees and expenses of the arbitrators have been paid?

Answer 20

Yes.

Question 21

Who can the winning party apply to for permission to enforce the arbitration award?

Answer 21

High Court, under s 66 AA.

Question 22

Once a settlement is reached, what happens to it?

Answer 22

It gets placed into a consent/tomlin order which keeps its contents confidential.

Question 23

What are the 3 grounds on which an arbitral award can be challenged?

Answer 23

1. The substantive jurisdiction
2. Serious irregularity – either irregularity in the procedure or the result will cause substantial injustice to the applicant
3. Appeal on point of law – This point can be excluded in an agreement whereas 1 and 2 are mandatory so 3 is not always availbale.

Question 24

When must an appeal be lodged?

Answer 24

28 days of the date of the award.

Question 25

What is the date of the award?

Answer 25

The date on which the award is signed by the arbitrator.

Question 26

What is the limitation period for both contract and tort?

Answer 26

6 years from the date of the cause of action to commence their proceedings.

Question 27

When does time start running?

Answer 27

The day after the date of cause of action.

Question 28

When does time cease to run?

Answer 28

When the claimant commences legal proceedings in respect of the cause of action in question.

Question 29

When does the cause of action accrue for tort and contract?

Answer 29

Tort – when the tort is committed

Negligence – When the damage occurs as a result of a breach of duty

Contract – as soon as the breach occurs.

Question 30

When the damage is latent damage (i.e., occurs after the breach) what is the limitation period in the tort of negligence?

Answer 30

Either
(a) 6 years after the date when the damage occured or;

(b) The date on which the claimant first had the knowledge required to bring an action – 15 years from the date of the negligence is the max.

Question 31

Can a contract specify a different limitation period?

Answer 31

Yes.

Question 32

What is the rule on issuing proceedings outside of limitation periods?

Answer 32

Where the claimant has commenced proceedings outside the limitation period the defendant has this as a defence and the claim cannot proceed.

Question 33

Will the court extend the limitation deadline?

Answer 33

Yes but only in exceptional circumstances.

Question 34

Does any settlement involving a child / protected party require approval of the court?

Answer 34

Yes.

Question 35

What are the two types of claims which can be issued?

Answer 35

1. Specified claims – debts – for a specified amount of money
2. Unspecified claims – Damages – for an undetermined amount fo money.

Question 36

Principle 1 of the pre-action conduct and protocols is..

Answer 36

1. Litigation should be a last resort. Parties should consider some other form of ADR before commencing proceedings.

Question 37

PDPAC states that only ‘X’ and ‘X’ steps must be taken by the parties to try and resolve the matter.

Answer 37

Reasonable and proportionate steps only.

Question 38

Where non-compliance with the PDPAC has:

1. Led to proceedings that might otherwise not have been commenced or
2. Led to unnecessary costs being incurred

what penalties can the court impose?

Answer 38

The following orders / penalties:

(a) That the party at fault pays some or all of their opponent’s costs (perhaps on the penalty indemnity basis);

(b) Depriving a claimant who is at fault of some or all of the interest they may subsequently be awarded on any damages recovered; or

(c) Requiring a defendant who is at fault to pay interest on any damages awarded to the claimant at a rate of up to 10% per annum above the base rate.

Question 39

If a person knowingly makes a false statement in a pre-action protocol letter, are they subject to contempt of court?

Answer 39

Yes.

Question 40

What are the pre-action protocol steps for debt claims?

– Does not apply to b2b except for sole traders
– Applies to individuals

Answer 40

 Potential claimant must give full information on the debt owed, including an up to date statement of account with details of interest and charges, and how the debt can be paid.
 This should include the standard reply form, information sheet and financial statement forms.
 Debtors are given 30 days to respond and court proceedings cannot be issued before this deadline.
 Creditor should allow extra time if necessary for the debtor to seek legal or debt advice or in order to pay.

Question 41

What is the pre-action protocol for professional negligence?

Answer 41

1) Preliminary notice by claimant
2) Claimant send letter of claim
3) D acknowledges
4) D investigates claim
5) D sends letter of response and/or letter of settlement

Question 42

Can hearings be commenced wholly in Welsh?

Answer 42

Yes, provided the court is informed.

Question 43

Can courts of England and Wales hear any proceedings if the claim form was served on the defendant while they were present in england/wales?

Answer 43

Yes. The mere presence of the defendant indiciates their acceptance of the nation’s jurisdiction.

Question 44

Can D object to proceedings being held in the UK?

Answer 44

Yes, on the grounds that the English courts are not the most appropriate for resolving the dispute.

Question 45

Can proceedings be issued on a defendant who is outside the jurisdiction?

Answer 45

Only if

a) The contract was made or breached in England and Wales or contains an agreement conferring jurisdiction on the English courts or

b) In tort, the act causing the damage was committed in England or Wales, or the loss was sustained there.

Question 46

Can a court compel parties to engage in ADR?

Answer 46

No, they can only encourage them to do so and will usuually do this in the CMC.