DR 1 Flashcards
What if a party commences court proceedings but the respondent wants to enforce the arbitration agreement?
They should acknowledge service and then apply to the court to stay the proceedings.
When should ADR not be used?
- If obviously inappropriate.
- The other party is unlikely to co-operate in the process.
- The other party cannot be trusted to comply with an award.
Complying with CPR 1998 regarding making an effort with ADR
Any party not engaging in any such means proposed by another must serve a witness statement giving reasons within 21 days of that proposal as to why. Witness statement will not be shown to judge until the question of costs arise.
Are the courts able to order ADR?
Yes as long as it does not impair the claimant’s right to proceed to judicial hearing and it is proportionate to the overriding objective of dealing with the case efficiently and justly at proportionate cost.
Do solicitors need to mention ADR to their clients?
Yes, they are required to confirm that they have explained to their clients:
- the need to try to settle
- the options available, and
- the possibility of costs sanctions if they refuse to attempt to settle.
Mediation
Mediator is sent written statements from both parties and thereafter will discuss the case with them on a without prejudice basis.
This will enable them to find the real areas of disagreement and the points most important to the parties and move towards a constructive solution.
Quicker, cheaper, more flexible and done in private. Can enable a business relationship to be preserved. Can include arrangements a court could not order. Able to withdraw.
No formal disclosure could lead to an unjust result. Clients may want public vindication. Ability to withdraw.
Not automatically legally binding however does form a contract if made an agreement so can sue for breach of contract.
Arbitration
Dispute referred to an independent arbitrator. Award is binding on both parties.
Can be costly but cheaper than litigation. Less formal than litigation. Decision made by person with expertise in the matter. Takes place in private. Solutions can be more practical than litigation.
Dispute may not get the same level of investigation as in the courts. Certain remedies are not available.
Once a decision is reached, the winning party can apply to the High Court under s66 AA 1996 for permission to enforce the award as if it were a court judgement.
Judges
District judges deal with most interim applications and have jurisdiction to deal with matters up to £25,000.
Trials in excess of this amount are heard by Circuit judges in the Count Court and High Court judges in the High Court.
Factors to be considered before issuing proceedings
Can the claim be brought at all?
Who are the parties?
Does the D have the means to pay a judgement?
What are the merits of the case?
What steps must be taken before proceedings are issued?
Also professional conduct matters.
Limitation Periods
Limitation Act states that for claims founded on contract and tort, the basic rule is 6 years from the date of the cause of action to commence proceedings.
Day of cause of action excluded from calculation.
Cause of action:
- in contract is when the breach of contract occurs
- in tort is when the tort is committed (in negligence this is when damage occurs as a result of breach of duty).
Limitation for PI is 3 years from the date of the cause of action or the date of knowledge of the injured person. For minors, time does not start until they turn 18.
For negligence claims where damage is latent:
- 6 years from the cause of action, or
- 3 years from the date of knowledge of the damage, whichever is later, but
- no later than 15 years after the negligent act or omission.
Safeguard of minors party to court proceedings
Must have a litigation friend acting on their behalf, fairly and competently. Cannot have an adverse interest.
Any settlement reached involving a child or protected party, will only be valid if approved by the court.
Practice Direction on Pre Action Conduct and Protocols (PDPAC)
Expressly states that only reasonable and proportionate steps should be taken by the parties to try and resolve the matter and costs incurred should also be proportionate.
Consequences for non-compliance with pre action protocols
a. A party at fault pays some or all of the other’s costs
b. Depriving a C who is at fault of some or all of the interest on damages recovered
c. Requiring a D who is at fault to pay interest on damages awarded at a rate of up to 10% above the base rate.
