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ADR > 05 - Ethics, Record and Enforcement > Flashcards

05 - Ethics, Record and Enforcement Flashcards

(51 cards)

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1
Q

Ethics Advocate

Standards

A 
(CD7) Competence
(CD3) Honest AND Integrity
(CD4) Independent
Client Instructions
(CD2) Client Best Interest
(CD1) Assist the Court
(CD6) Confidential
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2
Q

Ethics Advocate

(CD7) Competence

A

SKE

Standard of Work

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3
Q

Ethics Advocate

(CD3) Honest AND Integrity

A

(CD5) Trust AND Confidence
ADR MUST Genuine
NOT Abuse Position

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4
Q

Ethics Advocate

(CD4) Independent

A

Neutral
Conflict of Interest
Disclosure

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5
Q

Ethics Advocate

Client Instructions

A 
Within
Authority
Lay Client Objectives
Allegations = Supported; Arguable
Client Decision
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6
Q

Ethics Advocate

WHAT Authority

A 
Disclosure
Figures
Negotiate
Settlement
Avoid = Ostensible
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7
Q

Ethics Advocate

(CD2) Client Best Interest

A

Informed

Consider

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8
Q

Ethics Client

WHAT Informed Decision

A

ADR Options
Procedure
Settlement
Sanctions

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9
Q

Ethics Client

WHAT Consider

A

Legal Merits
Prospect of Success
Costs (ARD AND Litigation)

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10
Q

Ethics Advocate

(CD1) Assist the Court

A

Overriding Objective

NOT Mislead = Court; Other Party

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11
Q

Ethics Advocate

Confidential - Reason

A

Confidence = ADR; Proceedings

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12
Q

Ethics Advocate

Confidential - Method

A

ADR Contract
Legal Privilege
Without Prejudice

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13
Q

Ethics Advocate

Confidential - Exceptions

A

Permission

Legal Requirement

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14
Q

Ethics Advocate

Fees

A

YES Expenses

NO Referral Fees

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15
Q

Ethics Advocate

WHAT Expenses

A

ADR Membership IF
Reasonable
Genuine

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16
Q

Ethics Advocate

Failure = Consequences

A

Discontinue ADR
Wasted Costs
Professional Negligence
Disciplinary Proceedings

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17
Q

Ethics Mediator

Reasons

A

Position of Power
Influence = Settlement
Confidential

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18
Q

Ethics Mediator

Code of Conduct TYPES

A

ADR Provider
Civil Mediation Counsel = CMC
European
Professional = BSB OR SRA

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19
Q

Record Settlement

MUST Ensure

A 
Clarity
ALL Issues
Terms
Costs
Client
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20
Q

Record Settlement

Clarity

A

Clear
Certain
Comprehensive
Failure = ‘Void for Uncertainty’

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21
Q

Record Settlement

Terms

Study These Flashcards
A

Requirements
Mechanics
Confidential

22
Q

Record Settlement

Terms Requirements

Study These Flashcards
A 
Payment
Performance
Period of Time
Costs
Interest
23
Q

Record Settlement

Terms Mechanics

Study These Flashcards
A 
Agreement = Contract
Dispute = Arbitration
Value = Expert Determination
Enforcement = Court
24
Q

Record Settlement

Costs

Study These Flashcards
A

Agreement

NO Agreement = Follow Event; Part 8 Procedure (Court Assessment)

25
Record Settlement | Client
Understands Consent = Conditions; Award Approval Capacity = Litigation Friend WITH Court Approval
26
Record Settlement | Court Orders TYPES
``` Stay Discontinue Dismissal Final Judgement Consent Tomlin Costs ```
27
Record Settlement | WHAT Stay
NO Further Proceedings | NO Final Judgement
28
Record Settlement | WHAT Discontinue
Request = Claimant Court Decision = No PAY Costs = Claimant
29
Record Settlement | WHAT Dismissal
Request = Claimant Court Decision = NOT Proceed PAY Costs = MAY Share
30
Enforcement | HOW Mediation / Negotiation
Sue on Contract
31
Enforcement | STEPS Mediation / Negotiation
1. Proceedings 2. Defence Statement = Y/N 3. Enforcement
32
Enforcement | Defence Statement = YES
Summary Judgement | WHEN = NO Real Prospect of Success
33
Enforcement | Defence Statement = NO
Judgement in Default | WHEN = NO Response PoC; 14 days > Service
34
Enforcement | WHAT Compromise Agreement
``` Merge = Original AND ADR Settlement Contract = NOT Litigate ```
35
Compromise Agreement | Consideration
Settlement | Right to Litigation
36
Compromise Agreement | Exceptions
Agreement Void = Uncertainty Breach = Contract; Terms Non Performance
37
Enforcement | Contract Defence
``` Performed NOT Good Faith NO Authority Capacity Misrepresentation Fraud Repudiation ```
38
Enforcement | STEPS Arbitration
1. Permission to Enforce 2. Leave Given a. Court Judgement b. Court Order
39
Arbitration | WHAT Arbitration Act 1996 (s. 66)
High Court Permission | Effect = HC Judgement OR Order
40
Arbitration | WHAT New York Convention 1958
High Court Permission | Effect = HC Judgement OR Order
41
New York Convention 1958 | Enforcement Evidence
Arbitration Agreement Original Award Translation IF Foreign
42
New York Convention 1958 | Exceptions
``` NO Capacity NO Agreement Agreement Void Arbitration < > Agreement = NO Jurisdiction Arbitration Unfair = NO Notice; Case NOT Presented Tribunal = Wrong Number; Impartial Award = NON Binding; Set Aside Contrary to Public Policy ```
43
Enforcement | NO Proceedings TYPES
Sue on Contract | CPR Part 8
44
Enforcement | WHAT CPR Part 8
Alternative Procedure for Claims
45
Enforcement | WHEN CPR Part 8
Decision = NO Substantial Dispute of Fact Declaration Enforce Right
46
Enforcement | STEPS Tomlin Order
1. Claim Restored a. Liberty to Apply b. Remove Stay Order c. Compliance Order 2. Failure = Contempt of Court 3. Enforcement Order
47
Enforcement | STEPS Court Order
1. Court Judgement | 2. Court Order
48
Enforcement | Court Judgement WHAT
Immediate Payment | Instalments AND Remove Stay
49
Enforcement | Court Orders TYPES
Charging Order Debt Order Attachment of Earnings Receivership Order
50
Enforcement | Insolvency WHEN
Unable to Pay Debts as Due
51
Enforcement | Insolvency TYPES
``` Bankruptcy = Individual Winding-up = Company ```

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