Conflict Avoidance and Dispute Resolution Flashcards
What are some different forms of ADR?
- Independent expert
- Arbitration
- Mediation (not a resolver)
- Conciliation - similar to mediation but involved separate meetings and a joint meeting - used in family court
- Adjudication - used in construction contract disputes or in consumer claims - CEDR uses this for example
What are the characteristics of an Independent Expert?
Does own investigation,
can only award own costs unless otherwise directed,
can determine what he likes,
can be sued for negligence,
hard to appeal determination unless it is based on a misinterpretation (under Level Property v Balls Brothers)
Can’t order disclosure
What is the RICS document on Independent experts?
“Independent Expert Determination”
What are the characteristics of an Arbitrator
- Governed by the Arbitration Act 1996
- Has power over all costs
- Can only use information provided by the parties
- Must find in-between both parties submissions
- Cant be sued for negligence
- Can order disclosure
- can appeal award in limited circumstances on 3 grounds
What are the 3 grounds you can oppose an arbitrators award on?
- Point of Law
- Outside of Jurisdiction
- Serious Irregularity
How long do you have to appeal an arbitrator’s award? Is there any case law on this?
Within 28 days, but minister of Finance v International Petroleum Investment Company had an extension to appeal due to “unusual and special case” which resulted in the appeal being served 511 days after the award.
What are some reasons that an arbitrator may have acted outside of their jursdiction?
made an award on something they weren’t asked to award on, no valid agreement in place for them to act.
What are some reasons that an arbitrator may have acted “with serious irregularity”?
Failure to comply with duties outlined in s.69 of the Arbitration Act 1996.
What is the hierarchy for evidence in the Handbook of Rent Review?
- Open Market Lettings
- Lease renewals (it makes a difference whether it is inside or outside the act)
- Rent Reviews
- RR - Independent Expert
- RR - Arbitrator
- Court Determination under LL&T Act
- Heresay
- Sale and Leaseback
- Surrender and Renewal
- Intercompany arrangement
What are the characteristics of a Calderbank offer?
- Created via the Calderbank v Calderbank case
- Without prejudice save as to costs
- Can help protect you on costs, but tribunal has total discretion over what weight should be given to it
- Flexible, can change timescale for acceptance as long as it is reasonable
- Creates a binding contract once accepted
- Can be used when Part 36 doesn’t apply
When might a calderbank notice be invalid?
- Where it has been served with an unreasonable acceptance time (minimum is usually 21 days)
- Where is has been served a few days before trial - it is meant to be a meaningful offer to settle and not used as a cost protection tactic
What are the characteristics of a Part 36 Offer?
- Governed by the Civil Procedure Rules Part 36 (hence name)
- Only applies where CPR applies - i.e court
- Must state that it is intended to have the consequences of the s1 of part 36
- Its much more prescriptive than a calderbank offer and requires legal counsel to decide
- Has specific additional consequences if the Part.36 offer is made and refused and then not beaten at trial.
- Provides more certainty on how litigation costs will be treated
What is part 56 of CPR?
It makes it clear that parties should make appropriate attempts to resolve dispute via ADR before going to court and if you fail to engage ADR then it might have adverse cost implications
What are some cases relating to not using ADR as a method prior to court?
Dunnet v Railtrack Plc 2002 - cost sanctions where one party fails to accept the offer to mediate
Halsey v Milton Keynes NHS Trust - Shouldn’t force truly unwilling parties to refer to ADR, as it imposes unacceptable obstruction in their right of access to court
What are some benefits of PACT?
- Can choose an arbitrator or Independent Expert
- can mix and match the two depending on what points you want settled
- Is someone who is proficient in the topic - i.e. joint between law society and RICS so can have a surveyor look at values and lawyer look at points of law
- greater control and flexibility
- Cheaper
What are some problems of PACT?
- Must have agreement of both parties
- Can be just as costly and time consuming
What is the difference between PACT applications?
- Pre-issue PACT where you havent applied to court yet - have to make it clear that you need to agree to a written extension of the s.25 or s.26 notice or right to renewal will be lost for the tenant. Need a Written Agreement to enter into PACT in this case.
- Post-Issue Pact - You need a consent order from the court in this case to agree to stay proceedings until the resolution of PACT
What do you need to agree in your pre-issue or post-issue application?
- Whether you are having an arbitrator or independent expert
- The terms which are agreed and terms which are in dispute
- Matters which are to be decided by 3rd party
- Identify the 3rd party or the mechanism that will appoint them
- Agree the valuation date
- If using independent expert - what power they will have over costs
- If Pre-issue PACT then you need to agree how the tenant can decline and leave as revocation provisions under S.36 of LL&T act
What is the process of going to court under the LL&T act 1954?
- serve the relevant notice
- Make application by deadline in notice (unless agreed an extension in writing)
- Once application is made the Civil Procedure Rules apply.
- Application made by solicitor under part 8 of CPR
- Court will decide whether they want to allow certain evidence, based on the overriding objective in CPR 1.1 “must consider whether the costs are proportionate” and can refuse expert witnesses for example if it is felt the costs are not proportionate.
- Costs and Case Management Conference (Order case management directions up to trial; and consider estimated costs of the dispute and consider how proportionate the costs are to the value of the dispute).
- Trial
- Put together trial bundles
- Consequential hearing following judgement
- New lease usually issued 3-4 months after trial
What can you do as a tenant if you do not like the courts judgement?
Must apply under S.36 of the LL&T act for a revocation order within 14 days of the judgement. The current tenancy will then continue for a period considered reasonable for the landlord to relet the premises.
What must you do before acting as an expert witness?
Reissue terms of engagement to ensure that you do not have conditional fee basis and explain that your CHP does not apply any longer because your duty is to the tribunal and not to your client.
When is a Surveyor/Advocate role accepted and what are the implications of this?
It is accept in rent reviews and where it accommodates access to justice at a cost which allows it to be brought forward.
In both “Surveyors acting as Advocates” and “Surveyors acting as Expert Witnesses” it states that you must ensure you distinguish between the two different roles at all times.
What must expert witnesses outline in their reports?
- Detail qualification and experience
- Substance of instruction
- Consider all matters material to the dispute
- Make it clear when something falls out of your competence
- Reference literature
- Distinguish between fact and opinion
- If you cant make an opinion without qualification then you need to outline that qualification
- Statement of Truth and Declaration
What would you include in the statement of truth?
“I confirm I have made clear which facts and matters which are within my knowledge and which are not. Those in my knowledge are true, The opinions expressed represent my true and complete professional opinion. understand that contempt of court may be bought to anyone who make a false statement in a document verified by a statement of truth”.
