Summary
Summary Revision study notes for Dispute Resolution - distinction quality
- Course
- Institution
Summary of 34 pages for the course Dispute Resolution at ULaw (revision notes)
[Show more]
Seller
Follow
kellygibson
Content preview
PRE-ACTION STEPSTHE OVERRIDING OBJECTIVE
The OO must be borne in mind by the court (r.1.2) and the parties and their legal advisors (r.1.3). Each party is
required to help the Court further the OO, but has no duty or obligation to their opponent.
OO = the court should deal with cases justly and at proportionate cost CPR 1.1(1)
This means, as far as practicable: CPR 1.1(2) (a) – (f)
a) Ensuring the parties are on an equal footing
b) Saving expense
c) Dealing with the cases in ways which are proportionate:
i. To the amount of money involved
ii. To the importance of the case
iii. To the complexity of the issues
iv. To the financial position of each party
d) Ensuring cases are dealt with expeditiously and fairly
e) Allotting an appropriate share of the court’s resources to each case, bearing in mind the needs of
other cases.
f) Enforcing compliance with rules, practice directions and orders
The OO must always be borne in mind by the court: –
CPR 1.2 – the court must seek to give effect to the overriding objective when it exercises any power given to
it by the rules.
CPR1.3 – The parties have a duty to help the court further the overriding objective – there is the expectation
that there will be a high level of co-operation and realism from the legal representatives in their dealings with
each other and the court.
PRE-ACTION STEPS: LIMITATION PERIODS AND JURISDICTION
Where there is no contractual limitation clause, the following limits apply:
Contract Tort Latent Damage
6 years from when the breach 6 years from when the tort Where damage was not
occurs - s.5 LA 1980 - or from is committed s.2 LA 1980 evidence at the date of
when the intention of one party cause of action:
not to perform is made clear 3 years from the date of
(Hochester) knowledge if this is later than
the tort date - s.14A – LA 1980
12 years for a deed.
Long-stop: 15 years
NOTE
The relevant date is the date the court received the Claim Form, not when it is issued
For minors – the clock starts ticking from their 18 th birthday
,FUNDING
1) Private Funding 4) Trade Union Funding
2) Before the Event Insurance 5) Conditional Fee Arrangement (CFA)
3) Public Funding 6) Damages based agreement (DBA)
FIXED FEES
If a solicitor specifies a fixed fee for a service, he will be “obliged to complete the work, to the ordinary
standard of care, even if it has become unremunerative” – Inventors Friend Ltd v Leathes Prior (a firm) 2011
INSURANCE
Before the Event Often sold as an add-on to motor, or household insurance policies
Legal Expenses
Insurance The insurer will indemnify the client’s legal fees up to a certain amount providing
their claim falls within the terms of the policy
Solicitor should normally invite the client to bring such a policy to the initial
interview so the solicitor can deduce whether the client may benefit from it
Sarwar v Alam (2001)
If the client has LEI there will be no need for them to enter into a CFA
After the Event If the client does not benefit from a BTE policy, they may wish to purchase ATE to
Insurance protect against the risk of them paying their opponents costs in the event that
they lose
The disadvantages of this are that because it is an after-the-event policy, the
premiums tend to be expensive
The premium is not recoverable from the other side since LASPO 2012.
1
, PRE: ACTION – FUNDING CONTINUED
Conditional Fee It is an agreement with a person providing advocacy or litigation services which provide for his fees and
Agreements (CFA’s) expenses, or any part of them, to be payable only in specified circumstances. It does not cover any
– “no win, no fee payable disbursements or costs incurred by the opponent (payable if the client loses).
agreement”.
CLIENT LOSES
1. They will not have to pay their own solicitor’s legal costs
2. But will have to pay adverse costs awarded to the other side if the court orders them to do so
CLIENT WINS
1. They will have to pay their own solicitor’s costs
However, the other side may pay for a proportion of these costs if the court orders them to
pay the claimant’s costs. This is rare, however, 100% of the client’s costs
2. They may have to pay a success fee of up to a maximum of 100% of their costs - limit set by s.5
Conditional Fee Agreements Order 2013
The success fee is unrecoverable from the other side - Legal Aid, Sentencing and Punishment of
Offenders Act 2012
Damages Based If the client succeeds and recovers damages, his solicitor will be entitled to an amount equal to an
Agreements (DBA’s) agreed percentage of those damages
This amount will cover solicitor’s costs + VAT and counsels fees
It will not cover any disbursements which will be owed on top of this sum
TO BE ENFORCEABLE
To be valid, the DBA must meet the requirements in s.58AA (4) of the Courts and Legal Services Act
1990 -
1. The DBA must be in writing
2. Must not provide for a payment above the “prescribed amount”
This is set by the Damages-Based Agreements Regulations 2013
Solicitor’s costs, + VAT and counsel’s fees can be a maximum of 50% of the damages
award.
This cap does not include any disbursements other than counsel’s fees
3. Must comply with such other terms and conditions as are prescribed (by the DBA Regulations
2013):
The DBA must specify:
- The claim or proceedings or parts of them to which the DBA relates.
- The circumstances in which the representative’s payment, expenses and
costs, or part of them, are payable
- The reason for setting the amount of the payment at the level agreed
4. Must be made only after the solicitor has provided “prescribed information”.
“Prescribed information” regulations currently only cover employment matters
DBA EXAMPLE
Client wins a judgment of £250,000 damages + £40,000 costs. During the litigation, counsel was instructed at
the cost of £15,000, and expenses were incurred of £4,500.The client was funded by a DBA set at 20%. The
solicitors are therefore due a payment of £50,000 to cover costs, VAT and counsels fees + £4,500 to cover
the disbursement = £54,500 total. The defendant will pay £40,000 towards this, leaving £14,500
2
, outstanding, which must be paid by the client. The client will therefore get £235,500 total. The solicitor will
be responsible for paying counsel’s fees, which will leave the firm with £35,000 for his fees + VAT.
PRE-ACTION STEPS: FURTHER FUNDING
Trade Union If the client is a member of a trade union they may fund the client’s legal fees.
Funding
Public Funding 1. Only available in very limited circumstances in civil litigation.
(Legal Aid) 2. Not usually available for cases, which could be financed by CFA, e.g. negligence for
personal injury, death or damage to property (including intellectual property) are
excluded, as are matters arising out of the carrying on of a business.
3. Also subject to stringent financial eligibility checks
4. Nevertheless this must be considered from the outset or there is a risk of negligence
- David Truex, Solicitor (a firm) v Kitchin (2007)
PRE-ACTION STEPS – ALTERNATIVE DISPUTE RESOLUTION
ARBITRATION
Arbitration is an adjudication process that happens outside the court system but is governed by statute
Arbitration Act 1996
Advantages of Arbitration Disadvantages of Arbitration
Parties can opt to have a dispute heard by arbitrators Remedies like injunctions not always
with experience in the subject matter of the dispute available.
e.g. the oil industry Not necessarily cheaper
Sometimes quicker Dispute may not be investigated in such
Less formal; private and confidential depth as it would be in court – you might
Can reach practical solutions that are not available in not get to the true facts
court. The arbitrators do not have automatic
Decisions are binding and enforceable by the courts - powers that a court does.
s.66 AA 1996
Awards can be enforced in many countries, which are a
party to the New York Convention.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
**Pre-Action Practice Direction para 8 specified that ADR must be considered (not entered into, just
considered) or regard will be had to this failure when awarding costs (para 11)**
This means the court cannot order ADR to be used but parties should not unreasonably refuse it.
CPR 1998 r.1.4 (2)(e) encourages ADR and PD29 para 4.10(9) further indicates the emphasis the
courts place on ADR – they may require the parties to consider it. Parties should be aware that
refusal to consider a reasonable proposal for ADR might have a significant impact on any later costs
orders
Where party rejects ADR, should file a witness statement details reasons for this.
Litigation proceedings can be suspended to allow an attempt at ADR (Cable v Wireless)
Litigation should be a last resort
“The parties should consider whether negotiation or some other form of ADR might enable them to
settle their dispute without commencing proceedings”.
It may be justified not to engage in ADR if the client reasonably believed that he has a watertight
case Swain Mason v Mills & Reeve
No point proceeding with ADR if:-
1. There is no dispute (e.g. a simple debt action)
2. A ruling on a point of law is needed.
3
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller kellygibson. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $16.34. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
56326 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now