Unit 1 - General Matters Flashcards
What is the burden of proof in a civil case?
Balance of probabilities
Who bears the burden of proof in a civil claim?
The party making the allegation.
What happens if the judge is unsure of the probability of an event occurring, or the probabilities are equal?
The claim fails.
TRUE or FALSE: the seriousness of an allegation affects the standard of proof.
FALSE.
TRUE or FALSE: the seriousness of an allegation impacts how likely it is to have occurred.
TRUE
List some factors to consider when assessing a witness’s credibility. (9)
Truthful?
Mistaken? Unconscious bias? Wishful thinking? Memory fades Inconsistent with statement Frank and open? Admit errors? Exaggeration?
List some forms of funding (7)
Fund it yourself
Legal Aid
Trade Union Assistance
Conditional Fee Agreement
Damages-based Agreement
Third Party Funding
Legal expense insurance (ATE and BTE)
Name the two bottom-tier civil claim courts
County Court / Tribunals
Name the high courts
Divisional Court QB Division Administrative Court Family Division Chancery Division
List the 12 stages of a civil claim in order.
Pre-action protocol Claim issued Claim served Defence filed and served Track allocation Document disclosure Exchange witness reports Exchange expert evidence Pre-trial review Trial Judgment Enforcement
What happens in the pre-commencement stage of civil litigation?
Pre Action Protocolss
Follow Practice Directions on Pre-Action Conduct
Liaising between parties. Put them on notice.
What happens in the commencement stage of litigation?
Serve the form
D files defence Court allocates to different track
What happens in the Interim Matters stage of litigation? (per track allocation)
Give Directions to parties. Exchange expert reports / witness statements / document disclosure
Small
- Standard directions
- Set a dateFast
- Standard directions
- About 30 weeks to trialMulti
- Case management conference
- More complex
What happens in the post-trial stage of proceedings (per track allocation?)
Small
Appeal
Enforcement
Fast
Appeal
Enforcement
Multi
Appeal
Costs assessment
Enforcement
Who bears the burden of proof to show that it was reasonable/unreasonable for a successful party to refuse ADR?
The unsuccessful party. (Halsey)
What are the 6 factors for a court to consider when determining of a refusal to commit to ADR was unreasonable?
Nature of the dispute
Merits of the case
Other settlement methods attempted?
Costs of mediation
Would there be further delay?
Does mediation have a reasonable prospect of success?
Can ADR be mandatory?
No. Per Halsey, it should be encouraged and considered, but not mandatory. This would be an infringement of the right to access court. This is not to say that a party cannot be charged costs for refusing to participate in ADR.
What is the overriding objective? (CPR 1.1)
Enabling the court to deal with cases justly and at proportionate cost.
What does dealing with cases justly and at proportionate costs entail? (CPR 1.2) (6 things)
a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate—
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
Are parties required to help the court to further the overriding objective?
Yes. See CPR 1.3
Under CPR 1.4.1, the court has a duty to actively manage cases. What does this entail? (12)
(a) Encourage cooperation
(b) early issue identification
(c) which issues to follow, which to drop
(d) order of issue resolution
(e) ADR encouragement
(f) encourage settlement
(g) timetabling
(h) do costs justify taking a particular step?
(i) deal with as many aspects as practicable
(j) is party attendance needed
(k) technology
(l) ensure quick and efficient progress
Under PD7A 2.1, Proceedings (whether for damages or for a specified sum) may not be started in the High Court unless the value of the claim is more than…?
£100,000.
Under PD7A 2.2, proceedings which include a claim for damages in respect of personal injuries must not be started in the High Court unless the value of the claim is…?
£50,000 or more.
Subject to paragraphs 2.1 and 2.2 above, a claim should be started in the High Court if by reason of…? (4 things)
(1) Financial value
(2) complexity
(3) public importance
(4) the claimant believes that the claim ought to be dealt with by a High Court judge.
Why help parties to settle?
To divert cases from the court system or to ensure that those cases which do go through the system are disposed of as rapidly as possible.
List the 11 motivations for using ADR listed in the Jackson ADR handbook.
- 31: Lower costs.
- 32: Speed of settlement.
- 33: Choice of forum.
- 34: Control of Process.
- 35: Flexibility of process.
- 36: Confidentiality.
- 37: Wider range of issues and outcomes considered.
- 38: preserving relationships.
- 39: Problem-solving approach.
- 40: Risk management.
List the 7 criteria provided in the ADR Handbook for choosing which form of ADR to adopt.
- 42: How important is it to minimise costs?
- 43: Required speed?
- 44: Party control?
- 45: objectives: Pecuniary or non-pecuniary
- 46: Future relationship?
- 47: IExpert needed?
- 48: neutral assistance?
List 12 reasons why ADR might be unsuitable in a particular case.
- 49:public law
- 50: The need for precedent.
- 51: The importance of a court order. .
- 52interim orders
- 53: evidential rules are important.
- 54: the strength of the case.
- 55-56: complexity of the case.
- 57: high levels of animosity.
- 58: power imbalance between parties.
- 59: is XX key?
- 60: desire of having a day in court.
- 61: enforcement may be an issue.
Advantages of pre-selecting ADR? (6)
Easier to agree before dispute arises.
More control Certainty Identify particular ADR body Ensure confidentiality Maintain constructive approach.
Potential disadvantages of using ADR at pre-action stage? (4)
Wasted resources if unsuccessful
Exacerbate dispute Difficult to evaluate? Tactical, rather than genuine attempt to settle.
What are 9 practical considerations relevant to the right timing for ADR?
- 25: the overriding objective.
- 26: position as regards costs.
- 27: the timeframe for reaching resolution.
- 28; issues in the case.
- 29: availability of information.
- 30: availability and importance of evidence.
- 32: importance of interim applications.
- 33: strength of case.
- 34: antagonism.
What duties does a lawyer owe to the court re ADR? (10)
Giving advice to ensure client is aware of ADR;
Providing info on ADR options; Advising on pre-action ADR consideration; Advising client of obligations under overriding objective; Make sure client is aware of penalties for unreasonable refusal; Funding and costs advice; Get clear instructions on form of ADR to be used; Identify evidence of objective reasons for refusal; Assist in selection of independent third party to conduct ADR process; Advise on strengths and weaknesses when assessing use of non-adjudicative ADR.
Is silence in the face of an offer to use ADR reasonable?
No, unless the offer is clearly ridiculous.
What can you do to avoid sanctions for failing to accept ADR? (4)
Do not ignore offers to engage
Respond promptly, giving full reasons why ADR is not appropriate. In light of Halsey principles. Mark "without prejudice except as to costs" If lack of info is an obstacle, make that clear. Don't write letter as if you are entirely closing off the ADR avenue.
