Conflict Avoidance Flashcards
(47 cards)
What are the Civil Procedure Rules?
An improvement to the legal system making it quicker, cheaper, and easier to understand through the introduction of ADR.
What methods of ADR are there?
Adjudication, arbitration, mediation and negotiation.
What is adjudication?
Involves the appointment of an independent adjudicator who considers the evidence and makes an interim binding decision. Pay first, argue later. Used in the construction industry.
Housing Grants, Construction and Regeneration Act 1996
What is arbitration?
Involves the parties agreeing to refer the dispute to a third party and agree to be bound by the arbitrator’s decision. Private.
Governed by Arbitration Act 1996.
What is mediation?
Involves the appointment of an independent third party whose role is to help all parties to a dispute to come to an agreement. It is a voluntary process and all parties have to agree for mediation to go ahead. It is not binding.
What is negotiation?
This is the process of getting parties together with a view to reconcile differences and establish areas of agreement, settlement or compromise.
What is the difference between an independent expert and arbitrator?
An independent expert can make their own investigations and use their own knowledge of a subject to help them to reach their conclusion. An arbitrator reaches their decision based on the information submitted to them by the parties involved, similar to a judge.
At VT how do you distinguish your role as advocate and expert witness?
At VT any time you are giving your opinion on evidence submitted you are acting as an expert witness as you are giving your expert opinion. Any time you are explaining the basis of the appeal or talking generally about the appeal you are acting as an advocate, representing the Valuation officer.
Normally you will state when you are acting as an expert witness and when you are acting as an advocate.
Guidance on acting as an expert witness can be found in the RICS publication ‘Surveyors acting as expert witnesses.’
At VT you were acting as an expert witness and advocate - is this usual and what would you do in private practice?
This is not unusual when working for the Valuation Office. VOs are experts in Valuation but also have a duty of care to maintain a fair and accurate rating list. In private practice it is difficult to act as both an advocate and expert witness as an advocate would usually be paid depending on the success of the case – this would prevent impartiality required from an expert witness.
If you are a private practice agent acting on a no win no fee basis can you still be an expert witness?
Both the CPR and Surveyors acting as expert witnesses 4th edition expressly prohibit expert witnesses from undertaking an expert witness appointment on any form of conditional or other success-based arrangement.
Which case law concerned conditional fees?
Gardiner & Theobald LLP v David Jackson (VO) [2018]
An expert witness acting on a conditional fee arrangement must disclose that to the Upper Tribunal as soon as possible in the proceedings, to avoid the risk that this will cause the evidence to be ruled inadmissible or given lesser (or, indeed, no) weight. This applies even where a fixed fee has been agreed for the hearing, if the overall fee payable to the surveyor or his/her firm (including in respect of work before or after the hearing) is contingent on the outcome of the case.
How can you avoid conflicts?
By keeping good records with a sufficient level of detail can often help to resolve conflicts before they escalate.
What are the 3 main processes for resolving disputes?
- Negotiation- problem solving efforts of the parties
- Mediation- 3rd party intervention, non-binding, assists parties to resolve a dispute
- Adjudication- final outcome determined by a 3rd party
What are the benefits of ADR?
- Speed- faster than court proceedings
- Informality
- Greater opportunity for negotiation
- Costs less
- Decision made by a surveyor rather than a judge
- Confidentiality
What is an expert witness?
- Surveyor is obliged to put forward his opinion.
- Must not omit any evidence
- Must be impartial
- Duty is to the court
- Contingency fees not allowed except when undertaking a dual role
What is an advocate?
- Represents client
- Able to put forward arguments and conclusions with which they might not agree
Can you give an example of when you acted as expert witness and advocate?
At VT I was both advocate and expert witness. As advocate I set out the points of the appeal, case law, agreed facts, appeal history. As expert witness I presented evidence and my opinion of the evidence.
What is the VOA’s complaints handling procedure?
Tier 1 - A Complaints Manager will look into your complaint and will send you a response within 20 working days
Tier 2 - A different Complaints Manager will review your complaint and they will send you a response.
Adjudicator’s Office - can accept complaint if within 6 months of Tier 2 response
If you are unhappy with the decision from the Adjudicator’s Office, you can contact your MP to ask them to refer your complaint to the Parliamentary and Health Service Ombudsman.
How can you avoid conflict or disputes before they occur?
- Risk management
- Early management signs
- Partnering and alliance techniques
- Good payment practices, reporting and record-keeping
- Precise and robust client briefings
Independent expert vs expert witness?
Independent expert relates to the role of the 3rd party during ADR proceedings.
Expert witness is a role that a surveyor may act in during third party proceedings. Primary duty of care to the court. Cannot act on contingency fee basis. Cannot omit material facts.
What is expert determination?
Expert provides their expert opinion to determine the matter. The expert may or may not be required to consider written representations and replies put forward by each party’s representative. They have power over costs. Unlike arbitrator, expert can be liable for negligence and determination is not legally binding.
Does the RICS provide ADR?
Yes, PACT (Professional Arbitration on Court Terms)
Viable alternative to court where the parties cannot agree on key lease terms.
What happened in Jones v Kaney (2011)?
Historically an expert witness was immune from being sued for dishonest or negligent statements.
In this case, it was held that an expert witness can be found liable for breach of duty of care to their client in contract or negligence.
What is the RICS Dispute Resolution Service?
Provides for the appointment of a variety of third party dispute resolvers including arbitrators, experts, adjudicators and mediators.
