Timing and Judicial Encouragement Flashcards
(15 cards)
Which of the following is a reason the court might penalise a party in costs?
A. Refusing to engage in ADR without reasonable justification
B. Agreeing to ADR before the first case management conference
C. Making an early Part 36 offer
D. Filing a Directions Questionnaire on time
A. Refusing to engage in ADR without reasonable justification
Explanation: The court may penalise a party in costs for unreasonable refusal to engage in ADR (CPR 44.2). This is considered poor conduct, particularly if ADR could have resolved or narrowed the issues.
Which factor is least likely to justify refusal to engage in ADR?
A. The costs of ADR are clearly disproportionate
B. The claim has no real chance of success
C. The party has already made genuine settlement attempts
D. The case is weeks from trial and ADR will cause delay
B. The claim has no real chance of success
Explanation: If a party refuses ADR because the other party’s claim lacks merit, this may be reasonable. However, arguing that your own case is weak is not usually a reason to refuse ADR.
At which procedural stage must parties confirm they have considered ADR and may request a stay?
A. On issuing the claim
B. On serving the defence
C. At the final hearing
D. On completing the Directions Questionnaire
D. On completing the Directions Questionnaire
Explanation: The Directions Questionnaire requires parties to confirm they have considered settlement, including ADR, and they may request a stay for settlement discussions.
What is the court’s role in relation to ADR under CPR 1.4(2)(e)?
A. The court must impose ADR before issuing proceedings
B. The court must ignore ADR if parties disagree
C. The court must encourage and facilitate ADR
D. The court may only suggest mediation in small claims
C. The court must encourage and facilitate ADR
Explanation: CPR 1.4(2)(e) obliges the court to manage cases actively, which includes encouraging and facilitating ADR where appropriate.
A party proposes mediation shortly before trial. The opposing party refuses, citing lack of time. Is this refusal likely to be treated as reasonable?
A. Yes, if the refusal is made after disclosure
B. No, because late ADR is always encouraged
C. Possibly, if the delay would prejudice trial preparation
D. Yes, if ADR is always optional
C. Possibly, if the delay would prejudice trial preparation
Explanation: If ADR proposed late would prejudice a party’s ability to prepare for trial, the refusal may be reasonable. Timing is critical in assessing reasonableness.
Party A wins at trial but refused to attend a free, early mediation proposed by Party B. What is the likely costs consequence?
A. Party A may be penalised in costs for refusal
B. No consequence, the winning party always gets costs
C. Party B must pay indemnity costs
D. The court cannot consider ADR when awarding costs
A. Party A may be penalised in costs for refusal
Explanation: The court can penalise even a successful party in costs if their refusal to engage in ADR was unreasonable, particularly where ADR was cost-effective and timely.
A Directions Questionnaire is completed but no stay for ADR is requested. What must the party provide?
A. An explanation why settlement is not possible
B. An undertaking to settle within 14 days
C. A statement of truth
D. A list of potential mediators
A. An explanation why settlement is not possible
Explanation: If a party does not request a stay for settlement on the Directions Questionnaire, they must explain why ADR may not be suitable at that stage.
What should a party do upon receiving a proposal to mediate?
A. Respond clearly and promptly with reasons
B. File a defence
C. Ignore it and wait for court direction
D. Only respond if trial is more than 6 months away
A. Respond clearly and promptly with reasons
Explanation: Parties are expected to engage constructively with ADR proposals. A clear, written response (ideally without prejudice save as to costs) is essential to avoid cost penalties later.
A claimant refuses early ADR, claiming the defendant’s case lacks merit. The claim goes to trial and the claimant wins but receives only nominal damages. What might the court do regarding costs?
A. Award full costs to the claimant
B. Award no costs at all
C. Penalise the defendant for not pushing harder for ADR
D. Consider partial costs for the claimant due to refusal
D. Consider partial costs for the claimant due to refusal
Explanation: The court may reduce or disallow the claimant’s costs if the refusal to mediate was found to be unreasonable, despite the overall success in the claim.
A contract clause requires parties to refer disputes to expert determination before litigation. The claimant goes straight to court. What is the court most likely to do?
A. Strike out the claim
B. Allow proceedings but note the breach at costs stage
C. Award damages for breach of the ADR clause
D. Stay proceedings and direct parties to comply with ADR clause
D. Stay proceedings and direct parties to comply with ADR clause
Explanation: Where a binding contractual ADR clause exists, the court is likely to stay proceedings to allow the parties to exhaust that agreed process first.
The court issues a direction:
“At all stages the parties must consider settling this litigation by any means of ADR. Any party not engaging must serve a witness statement giving reasons.”
What is the purpose of this direction?
A. To exclude ADR discussions from evidence
B. To force the parties into arbitration
C. To create a record for cost assessment and encourage ADR
D. To ensure confidentiality of mediation sessions
C. To create a record for cost assessment and encourage ADR
Explanation: This kind of direction promotes ADR by forcing parties to justify refusals, creating a paper trail the court can consider later when deciding costs.
A defendant never suggested ADR and did not respond to an offer to mediate. The claimant loses at trial. What is the likely impact on the costs order?
A. The defendant will be denied costs for the entire claim
B. No cost penalty since the defendant won
C. The defendant may still be penalised for ignoring the ADR proposal
D. The claimant will recover full costs due to ADR refusal
C. The defendant may still be penalised for ignoring the ADR proposal
Explanation: Even a winning party can be penalised in costs for unreasonably refusing or ignoring ADR, especially if the refusal was silent and unexplained.
Which of the following best explains why engaging in ADR later in the litigation process might be beneficial?
A. It is less expensive than early ADR
B. Parties may have clearer views of evidence and legal arguments
C. It avoids any risk of sanctions
D. The court prefers ADR after trial
B. Parties may have clearer views of evidence and legal arguments
Explanation: While early ADR has advantages, later ADR can be useful once pleadings are finalised and evidence has emerged, leading to more informed settlements.
A judge stays proceedings to allow ADR exploration. One party refuses to participate at all. What must the refusing party do to avoid a cost penalty?
A. Request a different judge
B. Submit a witness statement explaining their reasons
C. Send a Calderbank offer
D. Ignore the direction if trial is imminent
B. Submit a witness statement explaining their reasons
Explanation: A party refusing court-directed ADR must file a witness statement explaining their refusal. This safeguards their position if costs are later disputed.
Which of the following factors would most weaken a party’s justification for refusing to mediate?
A. There is an ongoing settlement negotiation by correspondence
B. The dispute is very close to trial and time is short
C. The party claims that mediation is unlikely to succeed, without explaining why
D. The party believes its case is strong and supported by clear evidence
C. The party claims that mediation is unlikely to succeed, without explaining why
Explanation: Simply stating that ADR is unlikely to succeed is not sufficient. The courts expect parties to give reasoned justifications, especially when refusing a genuine ADR invitation.
