W2 Overriding objective Flashcards
CPR 1.1
what is the overriding objective?
to deal with cases justly and at proportionate cost
What does dealing with cases justly and at proportionate cost include?
so far as is practicable:
- ensuring that parties are on equal footing (so they can participate fully and give their best evidence)
- saving expense
- dealing with cases which are proportionate to -
* amount of £ involved
* importance of case
* complexity of the issues
* financial position of each party - ensuring its dealt w expeditiously + fairly
- alloting it appropriate share of the court’s resources
- enforcing complaince with CPRs and PDs and orders
CPR 1.2
When must the court seek to give effect to the overriding objective?
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
CPR 1.3
Are the parties required to help the court to further the overriding objective?
yes
CPR 1.4
Why does the court have a duty to actively manage cases?
to further the overriding objective
What does active case management include?
that the court should do
- 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
Commentary - 1.4.4
Does the court have the power to encourage co-operation between parties?
Yes
the courts should encourage co-operation between parties and discourage unreasonable conduct both before and after proceedings have commenced.
Commentary - 1.4.4
How does the court encourage co-operation between parties?
before proceedings have commenced
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)
Commentary - 1.4.4
How does the court encourage co-operation between parties?
once proceedings have commenced
**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.
Commentary - 1.4.4
Does co-operation require a party to remind their opponent to comply with a procedural time limit?
No
Commentary - 1.4.9
Are the courts required to help the parties to settle?
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.
Commentary - 1.4.9
How do the courts encourage parties to settle prior to commencement of litigation?
ADR
Disclosure
Commentary - 1.4.9
How do the courts encourage parties to settle once proceedings have commenced?
Offers to settle (Part 36)
Summary disposal of issues - in order to narrow the dispute
Commentary - 1.4.9
Why does the court encourage parties to settle?
To divert cases from court system
or
to ensure those cases that do go through are disposed of as rapidly as possible
Commentary - 1.4.9
Can the court order parties to engage in a settlement process via ADR?
yes
they may stay proceedings pending compliance with such an order.