Unit 1 Key pre-action steps Flashcards
Alternative dispute resolution
Collective term which refers to any means of settling disputes outside of the traditional litigation process.
- Negotiation, in which the parties and the lawyers discuss possible solutions whether in formal meetings or by correspondence.
- Arbitration.
- Mediation - independent third party.
- Litigation.
Alternative dispute resolution - Failure to engage with ADR
If the client is willing (or has already agreed) to participate in ADR, it should be used unless:
* it is obviously inappropriate e.g. an injunction is required;
* the other party is unlikely to co- operate in the process; or
* the other party cannot be trusted to comply with an award.
Penalties may be imposed unless they can provide justification in court. e.g. impact on costs orders.
During court proceedings fill out a directions questionnaire. Solicitor are required to confirm they have explained to their client:
(a) the need to try to settle;
(b) the options available; and
(c) the possibility of costs sanctions if they refuse to attempt to settle.
Alternative dispute resolution - mediation - procedure
Parties will agree an independent third person or body who will act as a ‘go- between’ known as a mediator.
Mediator will be sent written statements from both parties and will discuss the case with them on a ‘without prejudice’ basis.
Often the mediator and the parties will meet in the same building face to face.
Can be dealt with by correspondence, telephone conversations or online.
Alternative dispute resolution - mediation - advantages
- Cost and speed
- Flexibility
Parties may choose the procedure to be followed. There are no legal requirements and thus no need to comply with any statutes, rules of court or even case law. - Privacy
This may be important where the party’s reputation is an issue or where there may be possible future claims from other litigants. - Preserving a business relationship
Ideal for cases where the parties to the dispute will need to continue to deal with each other. - Commercial reality
A third party unconnected with the dispute may be able to assist the parties to arrive at realistic and workable terms of settlement. This could include arrangements that a court could not order, such as discounts on future orders.
*Ability to withdraw
Alternative dispute resolution - mediation - disadvantages
- Disclosure
Risk the parties may resolve the dispute without knowing all the facts. - Privacy
If the client requires public vindication perhaps to ensure that any damage to their reputation is repaired. - Ability to withdraw
Other party can walk away whereas the other party is likely to be unhappy at the time and money expended without a resolution.
Alternative dispute resolution - mediation - enforcement
Not automatically binding as the client cannot enforce this like a court judgment.
However, if the parties do agree to terms suggested as a result of mediation, they have entered into a contract. If one of the parties does not carry out that contract, they may be sued for the breach.
Alternative dispute resolution - arbitration
Substitute for litigation and, once a party has agreed to be subject to it, they cannot use normal court processes.
Arises in 2 ways:
(a) Parties contractually bound to use arbitration, Common clause in many business contracts e.g. construction and shipping. Governed by statute.
(b) In the absence of such a clause, the parties may agree to arbitration once a dispute has arisen and may choose their own arbitrator.
Alternative dispute resolution - arbitration - advantages and disadvantages
Advantages:
(a) Quicker and may be cheaper
(b) Procedures are less formal
(c) Decision is made by an impartial third party with expertise in the matter;
(d) Takes place in private thus retaining confidentiality
(e) Solutions reached are often more practical than those a court has the power to order; and
(f) Decision is binding on the parties.
Disadvantages:
(a) Dispute may not receive the depth of investigation it would receive in the courts (depending upon the procedures adopted);
(b) Certain remedies such as injunctions are not available.
(c) Not cheap as arbitration expert or panel will need to be paid and parties often want to be represented by lawyers.
(d) As the decision is binding, there are very limited rights of appeal.
Alternative dispute resolution - arbitration - enforcement
The winning party can apply to the High Court for permission to enforce the arbitration award as if it were a court judgment.
Alternative dispute resolution - litigation
Once done, neither party can withdraw without paying the opponents costs.
Most civil disputes are dealt with either by the County Court or the High Court.
Stage 1: pre- commencement of proceedings
Gather evidence.
Governed by pre-action protocols.
C should send to the proposed defendant a letter detailing the claim; and the D is expected to send a letter in response.
Stage 2: commencement of the claim
Commenced by claim form, must be served on D. D files and serves defence.
Court allocate matter to track.
Stage 3: interim matters
Directions given. Timetable imposed. Disclosure.
Stage 4: trial
Stage 5: post- trial
Appeal/apply to courts to enforce judgments if not paid.
Civil claim - limitation
Proceedings must be issued before limitation period expired.
Contract normally 6 years or specified in contract.
Personal injury 3 years.
Negligence claims where the damage is latent (hidden) at the date when the cause of action accrued:
* 6 years from the date of the cause of action; or
* 3 years from the date of knowledge of the damage, whichever is later; but
* no later than 15 years after the date of the negligent act or omission.
Also if D not known then runs from when they found out who D is.
Extensions may be available in exceptional circumstances.
Civil claim - parties to the claim
Children under 18 and people incapable of managing their own affairs because of a mental disorder are unable to be party to court proceeding and need a litigation friend to act for them.
Check defendant worth suing.
Civil claim - types of claim
- Specified claims
If it is for a fixed amount of money; usually, it is a claim for a debt owed. - Unspecified claims
If the court will have to conduct an investigation to determine the amount of money payable.
Civil claim - Pre- action procedure
Pre-action protocols. Different ones develop for different areas e.g. personal injury, debt claims etc.
If no relevant protocol exists, there is a Practice Direction on Pre- Action Conduct and Protocols (PDPAC), which contains general guidance. Mirror other protocols so all similar.
Civil claim - Pre- action procedure - Pre- Action Conduct and Protocols (PDPAC) - principles
(1) Litigation should be a last resort.
(2) The parties should exchange sufficient information in order to:
(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of ADR to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.
(3) The steps taken should usually include:
(a) the claimant writing to the defendant with concise details of the claim;
(b) the defendant responding within a reasonable time; and
(c) the parties disclosing key documents relevant to the issues in dispute.
(4) Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual and/ or expert issues.
(5) Where a dispute has not been resolved after the parties have followed the Practice Direction, they should review their respective positions to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings.
(6) If a dispute proceeds to litigation, the court will expect the parties to have complied with the Practice Direction. A party may be sanctioned for failing to do so.
