ADR Methods
Pre-action Protocol
Case Allocation
Service of Process
Statement of Case
Response
Interim Application
Case Management
Evidence
Disclosure
Trial
Costs
Appeals
Enforcement of Judgments
The court will look at non-exhaustive factors to determine the reasonableness of ADR. These
may include the nature of the dispute, merits, attempts at other settlement methods, ADR
costs, delay in ADR becoming prejudicial, reasonable prospect of success from ADR, and
costs sanctions resulting from refusal/not response.
The advantages of ADR can include neutrality, confidentiality, cost and time saving,
maintaining good relations, and flexibility.
The disadvantages of ADR can include delay, cost, exposing your hand, lack of impact on
limitation.
What is arbitration?
Arbitration involves parties paying and appointing an arbitrator. A binding and final outcome
will be enforceable by the court. It will involve an arbitration agreement. Case management
procedures will be involved.
The advantages of arbitration include confidentiality, flexibility, appointment of arbitrators
with appropriate experience, and easily enforceable awards.
The disadvantages of arbitration include similar costs to court proceedings, no binding
precedents and rare appealability.
What is mediation?
The advantages of mediation include it being cheaper, parties have control, confidentiality,
flexibility and an experienced mediator assisting with the settlement.
The disadvantages of mediation include no guarantee settlement, the mediator having no
power over the parties, and mediation not being suitable due to the parties’ relations.
What is negotiation?
The advantages of negotiation are that it is cost effective, the parties have control and
confidentiality.
The disadvantages of negotiation are that they lack an independent third party and it is
difficult to achieve settlement.
What is expert determination?
Expert determination is cheaper and more confidential. But it does not test the laws or facts.
,2) Civil Disputes
Which parties can file civil claims?
People with capacity over 18 years of age, or ‘protected parties’ if represented by litigation
friends and under 18 years of age.
Companies that have separate legal identity, holding companies or subsidiaries, or those in
liquidation.
LLPs with separate legal identity.
Partnerships and sole traders with no legal identity.
Associations, trustees and deceased’s personal representatives.
What is required for a cause of action?
A cause of action requires merits, evidence, further evidence to be obtained, steps to obtain or
preserve evidence, and the appropriate DR form.
What is the Limitations Act 1980?
The limitation period for contracts and torts is 6 years, and 12 years for deeds.
What pre-action conduct does Civil Procedure Rules 1998 require?
First, Claimant serves letter of claim to Respondent. They will include basis of claim,
summary of facts, damages sought and method of calculation. Second, Respondent will make
response to Claimant within 14 days to 3 months depending on the case’s complexity.
Pre-action advice will include merits, jurisdiction, costs, damages sought, procedural steps,
recovery of costs, injunctive relief sought, witness and expert evidence, funding.
What does the pre-action protocol require?
The protocol requires determination of the enforcement of decisions in favour of the client,
issues that may arise in enforcement, and costs and risks of enforcement.
The protocol requires parties to exchange information before commencing litigation to
determine procedural steps, their position, settlement without proceedings or through ADR.
The protocol applies to professional negligence, debt, construction and engineering, and
personal injury claims. If it does not apply, Master of Rolls will apply.
The protocol requires compliance either by sanctions on the winner to pay low interest rate or
loser to pay high interest rate, consideration of the defaulting party’s conduct, or penalising
the default party based on the costs award.
, What pre-action considerations should be made regarding the applicable law?
These will include the domicile law, foreign law, competing jurisdictions’ laws, opponent’s
domicile abroad, and choice of law clause.
How may jurisdiction be determined?
Factors to determine the court’s jurisdiction may include statutory framework, contracts
clauses, parties residing or having business outside the jurisdiction, agreements conducted
outside the jurisdiction, limited company registered abroad with UK presence, third party
jurisdictions having a better outcome, or provisions regarding the enforceability of judgments
outside the jurisdiction.
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