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Summary DISPUTE RESOLUTION Notes
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DISPUTE RESOLUTION comprehensive Notes for SQE 1 exams
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DISPUTE RESOLUTIONALTERNATIVE DISPUTE RESOLUTION
1. Any means of settling disputes outside of the traditional litigation process
2. ADR should be used unless:
a. It is obviously inappropriate
b. The other part is unlikely to co-operate
c. The other party cannot be trusted to comply with an award
3. Halsey v Milton Keynes General NHS Trusts (2004) – COA held that a court
may impose a costs sanction on a party if they unreasonably refuse to take
part in ADR. Factors to consider:
a. Nature of dispute, merits of case, the extent to which other settlement
methods have been attempted, whether costs of adr would be
disproportionately high, whether any delay in setting up adr would have
been prejudicial and whether adr had a reasonable prospect of
success
4. Burden is on the other party to show that the refusal is unreasonable
5. Laporte v Commissioner of Police for the Metropolic (2015) – courts penalised
the defendant even tho they won but only ordering the claimant to pay 2/3 rd of
the defendants costs as the defendant had failed, without adequate
justification, to engage in adr
6. Gore v Naheed and Ahemd (2017) – judge did not penalise the successful
claimant for their failure to consider ADR as mediation had no reasonable
prospect of success, would only add to costs and the matter raised complex
questions of law.
7. Directions Questionnaire – must ensure clients are fully aware of the
importance and implications of ADR
8. Clients should always consider ADR and engage in the process unless there
are convincing reasons not to do so
MEDIATION
1. Procedure
a. Parties agree an independent 3rd party who will act as a go-between
known as a mediator who will discuss the case with them on a ‘without
prejudice’ basis
b. No future judge will be made aware of the proceedings.
c. ADVANTAGES
i. Cost and speed – its cheapest and quicker
ii. Flexibility
iii. Privacy
iv. Preserving a business relationsip
v. Commercial reality – can offer arrangements different to that of
a court
vi. Ability to withdraw
d. DISADVANTAGES
i. Sometimes not appropriate
, ii. Disclosure – no formal procedure of disclosure of documents
and evidence so risk that parties resolve the dispute without
knowing all the facts
iii. Privacy – if client requires public vindication
iv. Ability to withdraw – no one can be forced to engage in
mediation and parties can withdraw at any stage before a
solution has been agreed
v. Enforcement – agreement is not automatically binding unless
parties enter a contract
ARBITRATION
1. Arbitration may arise in 2 ways:
a. The parties may be contractually bound to use and many business
contracts contain a clause requiring the parties to submit to arbitration
in the event of a dispute
b. The parties may agree to arbitration once a dispute has arisen and
may choose their own arbitrator with the relevant expertise.
2. Legal Authority
a. Arbitration Act 1996 – only applies if the agreement to arbitrate is in
writing
3. Procedure
a. Referred to an independent arbitrator
b. Once 3rd part has reached their decision this is binding on both parties
4. ADVANTAGES
a. Quicker than court and cheaper slightly unless want to hire an
expensive arbitrator who is specialist
b. Procedure is less formal
c. Decision made by an impartial 3rd party with expertise in the matter
d. Takes place in private so retains confidentiality – so preserve business
relationshop
e. Solutions are normally more practical than those a court has the power
to order
f. Decision is binding but very limited rights of appeal
5. DISADVANTAGES
a. Dispute may not receive the depth of investigation it would receive in
the courts
b. Certain remedies like injunctions are not available.
LITIGATION
1. Netiehr party can withdraw without paying the opponents costs
2. Court will impose its own solution
3. Civil Procedure Rules
a. Civil Procedure Rules 1998
4. Most civil disputes dealth with by County Court or the High Court
,Civil Claim
1. Stage 1 – pre-commencement of proceedings
a. Establish objection (legal and commercial)
b. Evidence gathered to confirm validity of claim and prospects of
success
c. Costs addressed and consider ADR
d. Then claimant send letter to defendant a letter detailing the claim and
the defendant is expected to send a letter in response.
2. Stage 2 – issue and serve claim form and particulars of claim
a. Defendant files defence
b. Court allocates claim to a track
i. Small claims – up to £10k
1. Stage 3 – standard directions
2. Stage 4 – final hearing usually no costs
3. Stage 5 – post trial – (appeal) enforcement
ii. Fast track – £10k to £25k
1. Stage 3 – standard directionrs – disclosure, witness
statements and expert reports
2. Stage 4 – trial within 30 weeks of directionrs – fixed trial
costs and summary assessment of other costs
3. Stage 5 – appeal, enforcement
iii. Multi-track – over £25k
1. Stage 3 – directions or case management conference
2. Stage 4 – trial
3. Stage 5 – appeal, detailed assessment of costs and
enforcement
RESOLVING A DISPUTE THROUGH A CIVIL CLAIM
Limitation
1. Limitation Act 1980 – strict limits with which the claimant must comply. If these
are missed that is the end of the matter as the claim will be statute barred.
2. Effect?
a. If a party has missed the limitation period then the defendant will have
a technical defence to the claim
3. What are these?
a. Contract or tort
i. Time limits set out in ss2 and 5 of LA 1980
ii. Basic rule – claimant has 6 years from date of the course of
action to commence their proceedings – with the limitation
period starting from the day after
1. the limitation period runs from the day after the
breach of contract
2.
iii. But important to check actual contract to see if limit prescribed.
b. Personal Injury
, i. 3 years
c. Negligence where the damage is latent (hidden)
i. S14A of LA:
1. Limitation period expries either:
a. 6 years from date of cause of action or
b. 3 years from date of knowledge of the damage
c. no later than 15 years after the date of the
negligent act or omission
4. Can it be extended?
a. Extensions may be available in exceptional circumtsances
b. A v Hoare – court granted sexual assault victim to pursue her claim for
damages against defendant who just won the lottery while in prison.
Despite being well outside the limitation period.
Types of Claims
1. Specified claims
a. Specified if it is for a fixed amount of money
2. Unspecified claims
a. If the court will have to conduct an investigation to determin the amount
of money payable – usually damages claims
Pre-action Procedure
1. The practice direction and the pre-action protocols
a. is to initiate and increase pre-action contact between the parties to
encourage better and earlier exchange of information so the parties are
in a position where they may be able to settle cases fairly and early
without litigation
b. STEPS:
i. 1. Claimant sends letter before claim including: concise details
of claim, summary of facts, what C wants from D and key
documents
ii. 2. Defendant sends a letter of response: within reasonable time,
must confirm if claim is accepted, explain reasons if not, indicate
if there is a counter-claim and include key documents.
iii. 3. Claimant replies and parties consider: negotiation, ADR,
appointment of experts
iv. 4. Stocktake: before issuing proceedings the parties should
review their positions, consider whether proceedings can be
avoided and if not narrow the issues in dispute.
v. 5. Sanctions for non-compliance: party at fault pays some or all
of opponents costs, C is deprived of some or all of the interest
on damages, D is required to pay a higher rate of interest on
damages
2. FOR DEBT CLAIMS
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