Syllabus Area 1 - General Matters Flashcards
(60 cards)
What is the overriding objective?
For cases to be dealt with in a fair and proportionate way. Court must take into consideration the complexity, value and parties financial positions in the case. The court must also have regard to the allocation of courts resources. Court must also have regard to parties being on equal footing and participating in proceedings fully.
What is the application by the court of the overriding objective?
Must have regard at all times unless involving terrorism or contrary to public interest
What is the duty on the parties?
To further the overriding objective by co operating and being fair & proportionate to costs.
What is involved in the Courts duty to manage cases?
Encouraging corporation, identifying early issues & disposing, ordering/facilitating ADR, helping settlement, fixing timetables, justify costs and dealing with multiple aspects once
How does the Court encourage use of ADR?
Cost incentive.
What does Churchill promote?
Court has power to order parties to engage in ADR & can order a stay of proceedings to engage with ADR
What does Halsey promote?
Court should encourage ADR but cannot compel parties to engage in this - this has been overturned.
What factors are to be considered in the power to order ADR through Churchill?
The form of ADR, whether it was to be successful, urgency of case, whether delay would cause limitation issues, financial resources of parties, whether there is an imbalance of bargaining power, reasons by parties to engage in ADR/to not engage in ADR.
How do we encourage parties to use ADR?
Provide information and encourage facilitation ADR and costs incentive.
When can ADR be used?
Before, commencing or instead of proceedings
What types of ADR are there?
Negotiation, mediation, arbitration, med/arm, ENE, expert determination, expert appraisal, conciliation.
What are non-adjudicative and types?
Where third party may be involved but it is not binding - mediation, negotiation, expert appraisal.
What are adjudicative?
Third party involved who make binding decision - arbitration, ENE, expert determination
What is negotiation?
Communicative process where both parties try to reach a conclusion.
What is mediation?
Third party mediator who is impartial moves between parties in order to reach a settlement which is confidential - court does not need to know.
What is ENE?
Expert appointed by parties evaluates the case and makes an evaluation which can influence proceedings.
What is med/arb?
If mediation doesn’t work, arbitration.
What is arbitration?
Third party called adjudicator involved where makes binding decision under jurisdiction can be through clause or choice.
What is expert determination?
Usually if need technical advice, individuals appoint third party, they make binding determination on case which can influence proceedings.
What is expert appraisal?
Just opinion on matter.
What is conciliation?
No definition but usually a statutory scheme e.g ACAS.
What are the general motivations for using ADR?
Cost effective, saves time for parties/court, private, less disruption, retains relationship and parties more involved.
When is ADR not appropriate?
Not many cases where it is not appropriate.
What is the role and responsibility for lawyers in ADR?
Should encourage and facilitate ADR if needed - should explain what it is - what types. If want to pursue, should help and help settle within their authority by involving client.
