Clear, precise, detailed, yet concise, Dispute Resolution summary for SQE students. I have devoted so much time and energy to writing these notes-summaries that eventually they paid off. Not only they allowed me to pass my PDGL with a distinction, but they were key to studying for the SQE exam. My ...
TOPIC 1 - DIFFERENT OPTIONS FOR DISPUTE RESOLUTION:
Alternative Dispute Resolution:
Litigation: last repost - possible penalties for clients failing to consider other options.
ADR: any means of settling disputes other than litigation. Includes: negotiation, arbitration and mediation.
ADR: means of resolving disputes with the assistance of an independent third party who may help the parties
to reach their own solution but who cannot impose a solution (except arbitration).
Voluntary: parties either voluntarily entered into an arbitration agreement or agreed to decide the
matter in this way once a dispute arose. And Confidential.
‘Without prejudice’: if it fails and court proceedings are taken, the court will not be made aware of the
ADR until after the judge has dealt with the issues of liability and the award of damages.
Parties can withdraw at any time before settlement & do not have to accept the proposed solution.
Failure to engage with ADR:
Solicitor should discuss ADR with client when dispute arises - ADR should be used unless:
Obviously inappropriate - ie an injunction is required;
Other party unlikely to cooperate;
Other party cannot be trusted to comply with award.
NB. Party refusing must be made aware penalties may be imposed for failure, unless refusal is justified.
Litigation rules require parties to consider ADR, if appropriate.
Also, judicial encouragement to attempt ADR - but cannot be ordered to do so.
Example of common direction in a court order:
At all stages the parties must consider settling this litigation by any means of Alternative Dispute
Resolution (including Mediation); any party not engaging in any such means proposed by another must
serve a witness statement giving reasons within 21 days of that proposal; such witness statement must not
be shown to the trial judge until questions of costs arise.
Civil Procedure Rules 1998: dictate how a case is litigated - failure to attempt ADR may impact costs.
Halsey v Milton Keynes General NHS Trust [2004]: court may impose a costs sanction on a party if they
unreasonably refuse to take part in ADR. Factors to take into account:
Nature of dispute; merits of case; extent of attempt of other methods; whether costs of ADR too high;
whether delay caused by ADR would be prejudicial; whether ADR reasonable prospects of success.
Burden on other party to show refusal was unreasonable.
Gore v Naheed and Ahmed [2017]: sanctions will not always apply where parties refuse to take part in ADR.
No penalty as mediation had no reasonable prospect of success, would only add to costs and the
matter raised complex questions of law.
Court proceedings include a directions questionnaire completed by parties - solicitors must explain to clients:
Need to try to settle; options available; possibility of costs sanctions if their refuse to attempt ADR.
Mediation: Procedure:
Mediation proposed (letter or email) to the opponent.
Parties agree an independent third party - mediator.
Mediator is sent written statements from both parties & discusses case with them on a without
prejudice basis – meaning that a future judge is not made aware of those exchanges.
May be done face-to-face; by correspondence; by telephone; or online.
Advantages: Cost and speed Cheaper than arbitration and litigation
Clients should still pay third party for their services as well as their lawyers
If successful: significantly shorter in time.
Flexibility Parties may choose procedure to be followed
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, No legal requirement and statutes/rules of courts/case law to comply with
Privacy Takes place in private: customers/public unaware of dispute
Preserving a Ideal where parties will need to continue dealing with each other
business Non-confrontational method of solving issues: solutions is theirs, not imposed
relationship
Commercial Third party assists in arriving at realistic and workable terms of settlement
reality Includes arrangements a court could not order - ie discounts on future orders
≠ litigation, whereby judgement is final and process is risky and uncertain
Ability to If the client is unhappy with the progress, mediation allows them to withdraw at
withdraw any time.
Disadvantages: Disclosure No formal procedures for disclosure: risk parties resolve without knowing all the facts
Consequently, decision may be unjust
However: sometimes clients prefer a quick decision to a completely accurate one
Privacy If client requires public vindication – perhaps to ensure any damage to their reputation is
repaired – privacy is a disadvantage: no opportunity to demonstrate they were not at fault.
Ability to A party who walks away from mediation process will be pleased they can do so, whereas
withdraw the other party would be unhappy at the time and money expended without a resolution.
Mediation not appropriate:
Client needs a ruling on a point of law or if an injunction is required; or
Matters involving allegations of fraud or other commercially disreputable conduct.
Enforcement: Agreement not automatically binding - cannot be enforced like a court judgement.
If the parties agree to terms suggested in mediation = they have entered into a contract. If one of the
parties does not carry out that contract, they may be sued for the breach.
Arbitration: Substitute for litigation - once party agrees to it, they cannot take advantage of normal court processes.
Arises in two ways: (1) arbitration clause (contractually bound to use arbitration); or (2) no clause (parties
agree to arbitration once dispute has arisen).
Governed by statute: Arbitration Act 1996. ** Only applies if agreement to arbitrate is in writing.
Procedure: Dispute referred to independent arbitrator.
o Person, professional or trade body may be specified in the original contract, or
o Parties can choose their own arbitrator.
Arbitration process adopted - less formal than court procedure.
Arbitrator’s decision is binding on both parties.
Advantages: Quicker and cheaper than court - although there will be costs implications in retaining the services of
an arbitrator, who may be a highly qualified and experienced expert in their field;
the procedures are less formal;
the decision is made by an impartial third party with expertise in the matter;
arbitration takes place in private thus retaining confidentiality – particularly important if the parties
wish to preserve a business relationship or to ensure customers or competitors are unaware of dispute;
the solutions reached are often more practical than those a court has the power to order; and
the decision is binding on the parties.
Less depth of investigation than in the courts (depending upon the procedures adopted); and
Disadvantages: certain remedies such as injunctions are not available;
Unlikely to be cheap - arbitrators and lawyers must be paid
Very limited rights of appeal.
Enforcement: The winning party to an arbitration can apply to the High Court under s 66 of the Arbitration Act 1996 for
permission to enforce the arbitration award as if it were a court judgment.
Litigation: Cannot withdraw without paying opponents costs. Main advantage: breaks deadlock between the parties.
Civil litigation —> Civil Procedure Rules 1998 (CPR)
CPR: 89 parts - each deals with one aspect of civil procedure
Additional info in Practice Directions - same reference number: ie. Part 36 (offers to settle)
supplemented by Practice Direction 36 (PD 36) (details on formalities required for such offers)
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,Civil courts: Most civil disputes are dealt with either by the County Court or the High Court.
Court Judges Much of the County Court and High Court work is dealt with by district judges
personnel: For matters proceeding in the Central Office in London they are referred to
as masters
Jurisdiction: claims where amount involved does not exceed £25,000.
Trials for higher amounts: heard by circuit judges in the County Court and by High
Court judges in the High Court
Court Senior civil servant in charge of court office - supported by team of administrative staff.
manager Formal docs sent to the court are addressed to the court manager
Ushers When the court is sitting, ushers are in attendance.
Their role is to assist in the smooth running of the courts including ensuring the lists of
cases are dealt with efficiently.
Enforcemen Bailiffs and High Court Enforcement Officers serve court documents and enforce court
t officers orders and judgments
An overview of a civil claim:
Stage 1 - pre- Starting point: the client:
commencemen legal and commercial objectives?
t of Gather evidence to confirm the viability of the claim and the prospects of success
proceedings: Address costs
Serious consideration given to ADR
Steps governed by pre-action protocols: establish issues in dispute, share info on these matters.
Failure to follow a protocol step or its spirit, without good reason, will usually incur a sanction.
Then: the potential claimant should send to the proposed defendant a letter detailing the claim; and the
defendant is expected to send a letter in response.
Litigation to be started only after these steps are completed.
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