W2 Overriding objective Flashcards

1
Q

CPR 1.1

what is the overriding objective?

A

to deal with cases justly and at proportionate cost

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2
Q

What does dealing with cases justly and at proportionate cost include?

A

so far as is practicable:

  1. ensuring that parties are on equal footing (so they can participate fully and give their best evidence)
  2. saving expense
  3. dealing with cases which are proportionate to -
    * amount of £ involved
    * importance of case
    * complexity of the issues
    * financial position of each party
  4. ensuring its dealt w expeditiously + fairly
  5. alloting it appropriate share of the court’s resources
  6. enforcing complaince with CPRs and PDs and orders
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3
Q

CPR 1.2

When must the court seek to give effect to the overriding objective?

A

a. when it exercises any power given to it by the Rules; or

b. interprets any rule subject to rules 76.2, 79.2, 80.2, 82.2 and 88.2

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4
Q

CPR 1.3

Are the parties required to help the court to further the overriding objective?

A

yes

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5
Q

CPR 1.4

Why does the court have a duty to actively manage cases?

A

to further the overriding objective

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6
Q

What does active case management include?

that the court should do

A
  • encourage parties to co-operate
  • identifying issues at an early stage
  • identifying which issues require full investigation + which can be dealt with summarily
  • deciding order to resolve issues
  • encouraging ADR and facilitating it
  • encouraging parties to settle whole/part of the case
  • fixing timetables to control progress of case
  • considering whether the likely benefits of taking a particular steps justify the taking of it
  • dealing with as many aspects of case on same occassion
  • dealing w case without parties needing to attend court
  • making use of technology
  • giving directions to ensure the trial of a case proceeds quickly + efficiently
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7
Q

Commentary - 1.4.4

Does the court have the power to encourage co-operation between parties?

A

Yes

the courts should encourage co-operation between parties and discourage unreasonable conduct both before and after proceedings have commenced.

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8
Q

Commentary - 1.4.4

How does the court encourage co-operation between parties?

before proceedings have commenced

A

before proceedings have commenced
COSTS

  • incentives for parties to act responsibly (cost-benefits to taking particular steps)
  • deterrent for unreasonable behaviour
  • the court will consider how much of the pre-action protocol the parties have followed

DISCLOSURE

  • the court can order disclosure of documents or inspection of property before a claim is made (to promote co-opertion)
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9
Q

Commentary - 1.4.4

How does the court encourage co-operation between parties?

once proceedings have commenced

A

**once proceedings have commenced **

court may approve without a hearing:

  • proposals agreed by the parties for management of proceedings on the multi-track + give directions in the terms proposed.
  • agreement extending period for filing a defence.
  • agreement to request stay to allow for settlement of a case.
  • agreement on single joint expert.

The effort made by the parties to resolve their dispute is a factor to which the court should have regard in deciding the amount of costs.
e.g. a party refusing to explain the basis upon which he assered their offer did not comply with provisions.

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10
Q

Commentary - 1.4.4

Does co-operation require a party to remind their opponent to comply with a procedural time limit?

A

No

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11
Q

Commentary - 1.4.9

Are the courts required to help the parties to settle?

A

yes

  • active case management includes helping the parties to settle whole or part of the case.
  • both prior to the commencement of litigation and following commecement.
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12
Q

Commentary - 1.4.9

How do the courts encourage parties to settle prior to commencement of litigation?

A

ADR

Disclosure

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13
Q

Commentary - 1.4.9

How do the courts encourage parties to settle once proceedings have commenced?

A

Offers to settle (Part 36)

Summary disposal of issues - in order to narrow the dispute

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14
Q

Commentary - 1.4.9

Why does the court encourage parties to settle?

A

To divert cases from court system

or

to ensure those cases that do go through are disposed of as rapidly as possible

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15
Q

Commentary - 1.4.9

Can the court order parties to engage in a settlement process via ADR?

A

yes

they may stay proceedings pending compliance with such an order.

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16
Q

Commentary - 1.4.9

Can the court stay claims in other circumstances?

A

yes

if there is a breach of an agreement between parties to attempt to resolve their dispute by reference to expert determination.

In such cases, their is a presumption in favour of the discretion being exercised to stay proceedings.

17
Q

Commentary - 1.4.9

Who does the burden lie on when the court wants to impose a stay?

A

the party resisting the stay

they need to persuade the court that there is a good reason for no stay to be imposed.

18
Q

Commentary - 1.4.11

How do the court encourage the use of ADR?

to further the overriding objective

A

hearing or ordering the use of early neutral evaluation (‘ENE’).