Class notes

ULaw reading notes for SQE1 and 2

0 purchase

Course
SQE1

Institution
SQE1

Need clear, easy-to-follow notes for the SQE? My lecture notes cover all the key topics for SQE1 and SQE2, including FLK, legal skills, and practice areas like contract law, equity and trusts, and criminal litigation.

[Show more]

Preview 4 out of 90 pages

View example

Uploaded on November 18, 2024
Number of pages 90
Written in 2023/2024
Type Class notes
Professor(s) University of law
Contains All classes

sqe1
sqe2
ulaw notes
sqe1 sqe2 sra notes lecture notes workshop notes
notes
lecture notes

Institution
SQE1
Education
SQE1
Course
SQE1

gemmawatson

Member since 4 year 3 documents sold

$11.44

Add to cart

Save

100% satisfaction guarantee
Immediately available after payment
Both online and in PDF
No strings attached

Reading Notes – Dispute Resolution

Chapter 1 – Different options for dispute resolution

Alternative dispute resolution

- ADR = settling disputes outside of the traditional litigation process
- Negotiation, arbitration and mediation

Nature of ADR
- Voluntary, confidential and without prejudice
o If fails, court will not be made aware of the ADR until after the court has dealt
with issues of liability and the award of damages
o Parties choose the process and can withdraw at any time before a settlement
is reached
o Do not have to accept the proposed solution
- Arbitration
o Voluntary, but only in sense of parties either voluntarily enter into an
arbitration agreement, or agree to decide the matter in this way once a
dispute arose
o If arbitration agreement is entered into, one party may force the other to
arbitrate against their will, provided that the original contractual agreement
to arbitrate is valid

Failure to engage with ADR
- If client is willing (or has already agreed) to participate in ADR, it should be used
unless:
o It is obviously inappropriate
 E.g. because an injunction is required
o The other party is unlikely to cooperate in the process
o The other party cannot be trusted to comply with an award
- No point in engaging with ADR if it will inevitably fail
o However if a party decides not to engage, they must be made aware of the
penalties that may be imposed for this failure
 Unless they can justify their stance to the court
 Sanctions allowed  Halsey v Milton Keynes NHS Trust
 Factors that the court considers are:
o Nature of the dispute
o Merits of case
o Extend of attempting other settlement methods
o Costs of ADR (disproportionately high or not)
o Whether any delay through setting up and attending
the ADR would have been prejudicial
o Whether the ADR had a reasonable prospect of success

,  Burden is on other party to show that refusal is unreasonable
with the court rejecting any presumption in favour of
mediation
 Laporte – even though a party was successful in defending litigation
proceedings, by not engaging in ADR (and without adequate
justification) the party was punished (only got back 2/3 of costs from
unsuccessful claimant)
 Sanctions won’t always apply
 Gore v Naheed and Ahmed - Allows parties to refuse if there is
little reasonable prospect of success, mediation would only
add to costs, and matter raised complex legal questions that
made it inappropriate for mediation
- Parties who choose to litigate may be encouraged (sometimes strongly) by the judge
to attempt ADR
o Although they cannot be ordered by the court to participate
o Importance that the court attaches to ADR is evidenced in CPR 1998
 Dictate how a case is litigated
o failure to respond to a reasonable proposal to attempt settlement by ADR
may have a significant impact on any subsequent order for costs
- During the course of court proceedings, parties complete a directions questionnaire
o Solicitors must confirm that they have explained to their client:
 The need to try and settle
 The options available
 The possibility of costs sanctions if they refuse to attempt to settle

Independent third party
- Essential feature of ADR
- Cannot impose a solution
o Therefore parties are less likely to be aggressive and more likely to open up
 Likelihood of settlement is higher
- Trained to act as neutral
- Has appropriate industry and/or commercial knowledge required to understand the
dispute
o Can come up with ideas that the parties may not have thought of
o Able to problem-solve without either party losing face

Mediation

- Should be discussed at an early stage with the client
o If client is open, should be proposed to the opponent
 Usually by letter or email

Procedure
- Parties agree on independent third party or body to mediate
- Mediator will be sent written statements from both parties
- Mediator will individually discuss matter with parties
o Without prejudice

, o Identify real areas of disagreement and most important points to each party
- Often face to face

Advantages
- Cost and speed
o Cheaper and quicker than arbitration and litigation
o However do have to pay for mediator and lawyers are often instructed
- Flexibility
o Parties choose the procedure
o No legal requirements
- Privacy
o Completely private
 Good if reputation is an issue or possible future claims from other
litigants
- Preserving a business relationship
o Non-confrontational – ideal if parties want to work together in the future
- Commercial reality
o Solution/settlement may be more realistic and workable
 E.g. arrangements that a court couldn’t order, e.g. discounts on future
orders
- Ability to withdraw
o If client is unhappy with progress, they can withdraw at any time

Disdvantages
- Many not be appropriate
o E.g. when a ruling on a point of law is required
o E.g. fraud or other commercially disreputable conduct
- Disclosure
o Risk that parties may resolve the dispute without knowing all the facts
 May lead to a decision that is found to be unjust
o However business-wise, often better to come to a quick decision rather than
wasting time and/or money on litigation to get a (potentially) more correct
outcome
- Privacy
o If the client requires public vindication
 E.g. wanting to repair reputation
- Ability to withdraw
o If the opposition withdraws, the client will have wasted time and money

Enforcement
- Not automatically binding
o Client cannot enforce
- However can enter into an agreement
o Non-compliance can lead to breach of contract

Arbitration

, - Substitute for litigation
- Once a party has agreed to it, they cannot take advantage of the normal court
process
- May arise in 2 ways:
o Parties are contractually bound to use arbitration
 Many business contracts contain a clause requiring the parties to
submit to arbitration in the event of a dispute
o If such a clause doesn’t exist, parties may agree to arbitration once a dispute
has arisen
 May choose their own arbitrator with the relevant expertise
- Largely governed by Arbitration Act 1996
o However only applies if the agreement to arbitrate is in writing

Procedure
- Dispute is referred to independent arbitrator
o Individual/body may be specified in original contract or may choose own with
relevant experience
- Process will be adopted
o Less formal than court procedure
- Once arbitrator has reached decision, it is binding on both parties to the dispute

Advantages
- Likely quicker and cheaper
o But have to pay for arbitrator
- Less formal procedures
- Decision made by impartial third party expert
- Takes place in private
- Often more practical solutions than the court has the power to order
- Decision is binding

Disadvantages
- Dispute may not receive the depth of investigation as litigation would
o Depending on procedures adopted
- Certain remedies aren’t available
o E.g. injunctions
- Unlikely to be the cheap alternative
o Arbitration expert or panel will need to be paid
o Parties represented by lawyers
- Very limited rights of appeal

Enforcement
- Can enforce through applying to the High Court under s66 Arbitration Act 1996

Litigation

- Neither party can withdraw without paying their opposition’s costs
- Breaks deadlock between parties

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 gemmawatson. Stuvia facilitates payment to the seller.

Will I be stuck with a subscription?

No, you only buy these notes for $11.44. You're not tied to anything after your purchase.

Can Stuvia be trusted?

4.6 stars on Google & Trustpilot (+1000 reviews)

73429 documents were sold in the last 30 days

Founded in 2010, the go-to place to buy study notes for 15 years now

Start selling

Seller

Other ·

Class notes

ULaw reading notes for SQE1 and 2

Document information

Subjects

Written for