100% satisfaction guarantee Immediately available after payment Both online and in PDF No strings attached
logo-home
Summary Civil Litigation 150+ pages Revision Notes $41.90   Add to cart

Summary

Summary Civil Litigation 150+ pages Revision Notes

 69 views  4 purchases
  • Course
  • Institution

Covers almost all the syllabus for Civil Litigation 2024. Summary of all that is covered.

Preview 4 out of 154  pages

  • July 16, 2024
  • 154
  • 2023/2024
  • Summary
  • Unknown
avatar-seller
Revision Notes Civil Litigation


Syllabus area 1: General Matters
1. Overriding objective [CPR 1.1]

(1) These rules are a procedural code with the overriding objective of enabling the court to
deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and
that parties and witnesses can give their best evidence;
(b) saving expense;
(c) dealing with the case 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; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the
need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.


2. Application Overriding Objective [CPR 1.2]
The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.


1. The duty of the parties [CPR 1.3]


The parties are required to help the court to further the overriding objective.
2. Court’s duty to manage cases [CPR1.4]
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
[CPR 1.4.4] encourage co-operative conduct on the part of litigants and discourage unreasonable
conduct, both before and after proceedings have been commenced.


1

,(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing
summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court
considers that appropriate and facilitating the use of such procedure;
[CPR 14.4.11] Furthering the overriding objective includes, hearing or ordering the use of early
neutral evaluation.
(f) helping the parties to settle the whole or part of the case;
[CPR 14.4.9] Active case management includes helping the parties to settle the whole or part of the
case. Encouraging consensual settlement both prior to the commencement of litigation and
following commencement was a central aim of the Access to Justice Reports.
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.


3. General principles of Alternative Dispute Resolution
[1.22 Jackson ADR] Use of ADR should be appropriately considered and a failure to make
reasonable use of ADR may be met with costs penalty.
Lowest end of scale: party may be required to consider information before proceedings can be issued.
Little further up the scale: might be required to provide evidence that ADR has been seriously
considered.
Middle of scale: party might be required to at least try to use a process such as mediation before being
allowed to proceed with litigation.
Most serious end of scale: query if a party might be compelled to use a form of ADR rather than
proceed to litigation. (Thought not to be acceptable = breach human right to a fair hearing)
[1.23 Jackson ADR] Not possible to compel a party to agree to a settlement in a non-adjudicative
ADR process, though a party will normally be bound by the decision in a valid adjudicative ADR
process that the party has agreed to use.
4. Motivation for the use of ADR
[2.31-2.40 Jackson ADR]
- Lower costs
- Speed of settlement: quick settlement can of itself limit the indirect costs of dealing with a dispute


2

,- Choice of forum: Benefit where parties feel that the dispute calls for a particular type of expertise.
- Control of process: ADR process is subject to a contractual agreement, parties can agree process
options to suit their needs.
- Flexibility of process: In adjudicative ADR a flexible process can be agreed. In non-adjudicative
ADR the process is normally very open to tailoring for the need of a particular dispute.
- Confidentiality: Court hearings usually public whereas ADR is a private process protected by the
without prejudice principle and confidentiality clauses.
- Wider range of issues/outcomes may be considered: Parties can deal with issues between them.
- Shared future interests may be protected: more effective in preserving a relationship and
reaching a settlement that best reflects the future interests.
- Use of a problem-solving approach: ADR is more constructive, experienced mediator is able to
use a range of techniques.
- Risk management: Risk may be more directly, and cost effectively controlled through constructive
and proactive use of ADR.


5. Criteria for the selection of an ADR option
[2.41- 2.48 Jackson ADR]
- How important is it to minimize costs?
- How important is fast resolution?
- How much control dose the party want?
- What are the main objectives of the party?
- Is a future relationship important?
- Is the view of an expert important to key issues?
- Would neutral assistance be valuable?
6. ADR may not be appropriate
[2.49-2.61 Jackson ADR]
- Need for a precedent
- Importance of court order
- Relevance of interim orders: ADR may be used once appropriate interim orders have been made or
a court order may in limited circumstances be able to make a relevant order prior to the issue of
proceedings or very soon after proceedings have been issues, to support ADR.
- Evidential rules are important: disclosure, exchange witness statements …
- Strength of case: party that believes his case is strong must be objectively justifiable and is only one
factor and will not necessarily of itself justify a refusal to use ADR.
- Complexity of the case


3

, - High levels of animosity
- Power imbalance
- Quasi criminal allegations: cases involving fraud or libel may not be suitable for non-adjudicative
ADR.
- Having a day in court
- Enforcement may be an issue.
7. Duty of lawyer under the CPR rules (ADR)
[4.02 Jackson ADR]


- Comply with obligations and take appropriate action if an opponent does not.
- Advising client
- Drafting settlement agreement or Tomlin order.


8. Role of Lawyer in Advising on ADR
[4.03 Jackson ADR]
- Advice at key stages as litigation progresses ensuring client is sufficiently aware of ADR
alternative.
- providing objective information on relevant ADR options
- Advising client on pre-action obligations
- Advising client on obligations under overriding objective
- Ensuring client is aware of penalties for unreasonable refusal to use ADR
- giving appropriate advice on funding and costs in relation to ADR
- getting clear advice on form of ADR to be used
- ensuring objective reasons are identified and sufficient evidence of those reasons retained (if ADR
is not selected)
- assisting in selection of an independent 3rd party
- advising on strengths and weaknesses of a case
- considering and advising on offers in relation to non-adjudicative ADR
- advising on and drafting terms of settlement.




9. Authority to settle
[4.07-4.08 Jackson ADR]
Acting within authority to settle and on the basis of sufficiently clear client instructions.


4

The benefits of buying summaries with Stuvia:

Guaranteed quality through customer reviews

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

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

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 pearlagius. Stuvia facilitates payment to the seller.

Will I be stuck with a subscription?

No, you only buy these notes for $41.90. You're not tied to anything after your purchase.

Can Stuvia be trusted?

4.6 stars on Google & Trustpilot (+1000 reviews)

80461 documents were sold in the last 30 days

Founded in 2010, the go-to place to buy study notes for 14 years now

Start selling
$41.90  4x  sold
  • (0)
  Add to cart