DISPUTE RESOLUTION MCQ’S
Unit 1 – Pre-Action Steps
Your firm's commercial department is acting for Ms Y in negotiations with several publishers to publish her new book.
Your firm's litigation department has today been asked by Mr X to act for him. Mr X claims that, in writing her new book,
Ms Y breached his copyright by claiming as her own large sections of a book that he wrote several years ago. He wants to
stop her publishing and to claim damages.
Based on the above facts which THREE of the following statements are CORRECT?
A. Your firm will have a conflict of interest if it acts for both Ms Y and Mr X.
B. The overriding objective of the Civil Procedure Rules, 1998 (CPR) is to ensure that the parties are on an equal footing.
C. The court must seek to give effect to the overriding objective when it exercises any power given to it under the rules,
or interprets any rule.
D. Solicitors have a positive duty to help the court further the overriding objective of the CPR but such a duty does not
apply to clients. This is because clients will not necessarily be legal professionals.
E. Early in a dispute resolution matter a solicitor should advise his client to preserve documents relating to the dispute,
even if those documents would harm the client's case.
Response Feedback:
- A is correct. Look at the definition of "conflict of interest" in the SRA Standards and Regulations Glossary. If your firm
takes on Mr X it will have separate duties to act in both his and Ms Y’s best interests. Will these be in the same or
related matter? Yes: Mr X and Ms Y’s matters are clearly “related”. Do those separate duties conflict? Yes, as Ms Y
wants to get her book published but Mr X wants to stop her. This is an actual conflict, but note that even a
“significant risk” of conflict will engage paragraph 6.2 of the SRA Code of Conduct and stop you from acting
(potentially: there are exceptions). As a final point, note that if it is the firm’s own interest that conflicts with that of a
client (rather than, as here, clients' interests conflicting with one another), this is called an “own interest conflict”.
- B is wrong. The overriding objective of the CPR, 1998 is that the court must deal with cases justly and at
proportionate cost. As CPR 1.1(1) states, "These Rules are a new procedural code with the overriding objective of
enabling the courts to deal with cases justly and at proportionate cost." You will see from CPR 1.1(2)(a) that
“ensuring the parties are on an equal footing” is just one of the ways in which (so far as is practicable) the court will
achieve this. The others set out in CPR 1.1(2) are:
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.
- C is correct: see CPR 1.2.
- D is wrong. Solicitors and their clients both have a positive duty to help the court further the overriding objective: see
CPR 1.3. But remember that a solicitor must also act in the best interests of his client (SRA Code of Conduct, Principle
7). So CPR 1.3 does not, for example, mean that a client must be advised to accept a low offer of settlement from an
opponent just to avoid taking up the court's resources with litigation, although it could mean recommending that the
client make a (counter-) offer, perhaps under Part 36 (about which you will learn more later in the course). Nor does it
mean advising a client to give pre-action disclosure to an opponent of all documents adverse to the client's case: that
would not be in the client's best interests. Nonetheless, to minimise the risk of any apparent clash between the duties
you should clearly explain CPR 1.1, 1.2 and 1.3 to the client at the outset of a matter.
- E is correct: see Chapter 3 of the Civil Litigation Textbook.
Which ONE of the follow methods of ADR is BEST DESCRIBED by the description below:
Typically a third party has written statements from the parties, discusses the case with each party on a without prejudice
basis, identifies areas of disagreement and importance, and tries to move the parties towards constructive solutions.
A. Early neutral evaluation
B. Final offer arbitration
C. Mediation
D. Judicial appraisal.
E. Med-arb (mediation-arbitration).
F. Mini-trial.
Response Feedback:
- A final offer arbitration is where a third party is instructed to choose between settlement terms proposed by each of
the parties.
, - Med-arb is where the parties agree to attempt mediation first and if that fails to refer the matter to arbitration.
- A mini-trial is where a third party sits as chairman of a tribunal with a senior representative of each party.
- An early neutral evaluation is where shortly after a dispute arises the parties ask a third party to give a preliminary
view of their respective positions.
- A judicial appraisal is where a legal expert is asked to offer a preliminary view of the parties' legal positions.
- It is important to be able to identify which method or methods of ADR (if any) may be suitable for a particular client
to attempt. The choice of dispute resolution method will usually be very fact-dependent, taking into account the
nature of the dispute and what the client actually wants.
- Note that the methods of dispute resolution shown above do not represent every possibility for dispute resolution
outside formal court proceedings. It may, for example, be possible to negotiate a resolution face-to-face or through
legal representatives, and formal offers of settlement may also be employed. Arbitration is yet another popular
option. The use of experts are another option. For example, an expert appraisal where an expert third party is asked
to give a non-binding opinion or an expert determination were an expert third party is asked to give a binding
opinion.
- Finally, you should understand that different methods of dispute resolution are not necessarily mutually exclusive.
Some combinations clearly will not work, or will overlap too much for both to be useful, but it is not uncommon for
court proceedings to be stayed whilst an attempt is made by other means to resolve a matter; and it is common for
offers of settlement and/or some degree of negotiation to be employed in parallel with other processes.
Which ONE of the following statements is CORRECT?
A. Your firm agrees to represent a client at, and in relation to, an arbitration hearing for an agreed fixed fee. If
preparation for and attendance at the hearing takes longer than anticipated your firm will be able to charge the
client a higher fee.
B. You see a new commercial client who instructs you to issue and serve proceedings in a debt claim immediately.
Payment of the debt was due from the debtor company 6 months ago. Your client sent a chasing letter seeking
payment 3 months ago. As the client has instructed you to take a lawful step you must carry it out without question
or advising to the contrary.
C. Under a conditional fee agreement the solicitor receives no payment or less than normal payment if the client's case
is lost. However, if the client is successful, the solicitor may be paid his normal charges and may also be paid in
addition an agreed increase in his normal charges up to a maximum of 100%. Under a damages-based agreement,
the solicitor receives (in respect of his fees including VAT) an agreed percentage of any money recovered by the
successful client up to a maximum of 50% of the damages. Both arrangements are lawful at all stages of the litigation
process, including pre-action.
D. Your firm acts for a prospective claimant whose matter falls under the Practice Direction - Pre-action Conduct and
Protocols. As you believe an issue in the case will require expert evidence, your client must propose in his letter
before claim or subsequently that the parties agree on the appointment of a single joint expert.
Response Feedback:
- A is wrong. If a solicitor unconditionally agrees to be remunerated by a fixed fee, the solicitor is bound to do the work
covered by the agreement for that amount, even though circumstances arise which make the work unprofitable for
the solicitor (see Inventors Friend Ltd v Leathes Prior (a firm) [2011] cited in Chapter 2 of the Civil Litigation Textbook).
When a client uses a solicitor’s services it will enter into a contract with the firm (usually called a "retainer") and the
firm will be bound by these terms - including terms as to fees. Also note that for a solicitor to agree to act for a fixed
fee and then go back on this could have professional conduct implications: a solicitor must act with integrity (SRA
Code of Conduct, Principle 5), act in his or her client’s best interests (Principle 7), and must act in a way that
maintains the trust that the public places in the provision of legal services (Principle 2).
- There are also other parts of the SRA Code of Conduct with direct or potential relevance to fees, such as:
o Paragraph 1.1: Do not unfairly discriminate by allowing your personal views to affect professional
relationships.
o Paragraph 1.2: Do not abuse your position by taking unfair advantage of clients [or others]
o Paragraph 3.4: Consider and take account of client’s attributes, needs and circumstances.
o Paragraph 8.7: Ensure clients receive best possible information about how their matter will be priced, and
the likely overall cost.
o Paragraph 8.3: Inform clients in writing at time of engagement of their right to complain to you about your
services or your charges.
- B is wrong. A solicitor must act in the best interests of his or her client pursuant the SRA Code of Conduct, Principle 7.
To do this can involve giving advice which perhaps the client will not like or follow. So whilst in this instance
proceedings can of course be issued and served immediately, the client should first be warned that failure to send a
letter before claim and wait a reasonable period for a response may result in sanctions being imposed on the client,
even if the client ultimately wins at trial. Under paragraph 16 of the Practice Direction - Pre-action Conduct and
Protocols, sanctions for non-compliance with that protocol (or indeed any other pre-action protocol) could include:
o an order that the party at fault pays the costs of the proceedings, or part of the costs of the other parties;
o an order that the party at fault pay those costs on an indemnity basis;
