SQE2 – Dispute Resolution
Assessments
Assessment Details
SQE2 oral Advocacy
SQE2 written Legal drafting, legal writing, legal research, case and matter analysis
The principles, procedures and processes involved in dispute resolution
SQE2 Assessment Details
Specification
Different options for dispute resolution
Characteristics of arbitration, CPR requires parties and Court to give greater consideration to ADR throughout a case. Checkpoints include pre-action
mediation and litigation protocol stage, allocation, and CMC (before directions are finalised for the case).
Mediation: Mediator has no authority to make any decision which is binding on parties. If mediation does not end in an
agreed resolution, the content will remain confidential and will not be made known to Court (WP privilege applies – privilege
belongs to parties). Not suitable if need immediate injunctive relief, if no legal capacity, if precedent is required, if either party
not committed to mediation process, if either party’s status / constitutional rights are affected. Should also note mediation does
not extend limitation period. Should be considered at all major stages of dispute. Solicitor should carry out analysis and advise
on legal alternatives if case does not settle, including prospects at trial and costs – client should take lead role in mediation. If
settlement is reached, solicitor will ensure legal effectiveness of including drafting settlement agreement at the end.
- Plenary session: Mediator and all parties clarify issues. Limited time to speak directly to client on the other side without
filtered through lawyers and the other side may not interrupt. Mediator will seek clarification of any issues at this stage.
After the presentations, mediator may allow questions from parties, but for purpose of clarification only and not cross-
examination.
- Breakout sessions: Move to individual rooms. Lawyer’s role is to protect client’s position but must be aware he is there to
help client identify settlement opportunities and assist in risk assessments: “BATNA” (best alternative to a negotiated
agreement) and “WATNA” (worst alternative to a negotiated agreement)
- Try to achieve settlement: Both parties can submit their proposals to mediator at the same time to enable mediator to
ascertain any common ground / highlight key areas of disagreement. Or one party can submit first and mediator can shuttle
between parties carrying proposals / counterproposals for settlement and narrow down issues in dispute. Sometimes,
mediator may put forward to parties written non-binding recommendations for settlement (though some unwilling because
of independence issues). If appropriate, mediator can initiate another joint session (continue negotiations / summarising /
agreeing terms).
1
, - Settlement agreement: If signed, enforceable at law like normal contracts.
- Recoverability of mediation costs: “costs in the case”
Arbitration: Privacy, enforcement, expertise, finality, flexibility, neutrality, delays, cost, multiparty disputes. Even though
there may be an arbitration agreement, some parties still commence Court proceedings when disputes arise. If this happens, the
purported D who wants to arbitrate must: Acknowledge service of particulars of claim to stop default judgment (but contest
Court’s jurisdiction) + apply to Court under CPR62.8 to stay proceedings pursuant to Section 9 of Arbitration Act so can be
dealt with by arbitration.
- Involvement of High Court: Section 44 allows Court to make orders relating to taking evidence from witnesses, preserving
evidence, inspecting goods re proceedings, selling goods involved in proceedings, interim injunctions, appointment of
receiver.
- Awards are final and binding in that it provides final determination in dispute, subject to closely defined statutory rights of
challenge. Definitely no right to appeal to Courts on question of fact. Two basis: Challenge (28 days from date of award)
on jurisdiction, challenge for serious irregularity, and point of law.
- Costs: Normally costs follow the event (i.e. the unsuccessful litigant will be ordered to pay the legal costs of the successful
party, in addition to paying his own legal costs).
- Enforcement: NYC or apply to High Court for permission to convert the arbitration award to Court judgment.
Pre-action considerations Conduct and AML considerations (client care, explain costs, complaint procedures, cannot act if in conflict, bear in mind
confidentiality and disclosure obligations, money laundering (identify name and address))
- Solicitor / client costs (i.e. costs the lawyer charges for work that they do) – profit costs (hourly rate x hours spent) plus
VAT and disbursements. Note COA and interim billing also available (monthly / quarterly)
- Party / party costs (i.e. all such costs as were necessary or proper for the attainment of justice or for enforcing / defending
the rights of the party whose costs are being taxed – costs a Court may make the losing party pay the winning party) – if
litigant wins, Court order to recover all / part of these costs from the unsuccessful party
o Normal to have a shortfall
o Whether party is ordered to pay depends primarily on who won on each issue and how much time each of those issues
took to be determined, usually “costs follow the event” CPR44.2(2)
o But sometimes Court discretion, take into account conduct of parties throughout the litigation
Before meeting client (prepare and send client care letter – final terms, scope of retainer, conflicts searches, request COA,
request relevant documents, prepare pre-interview questionnaire, ensure bring AML documents)
Initial meeting and taking instructions (verify identity, take full details of client’s version of events, objectives, initial advice
on merits, remedies, limitation, advise on DR options, think trial (evidence gathering, liability and quantum), position of other
side (registers, searches, legally aided opponent – will not recover costs and may not recover damages, insurance), summarise
client’s position and options available, advise on next steps.
Post interview actions and follow up (confirm who you act for, confirm authority of person you are taking instructions from,
identify persons to claim against, identify whether potential opponents have means to meet any judgment (e.g. conduct
2
, bankruptcy, company, credit searches, consider whether opponent is insured, risk assessment), write to client (funding, issue at
hand, scope of retainer, cost estimate, request for documents), draft WS, advise opponent that you act for client, start liability
and damages investigations.
Professional duties in respect of costs O1.13 SRA Code of Conduct
- Best possible information about likely overall costs
- Discuss how client will pay / whether legal aid is available (x PI / death, conveyancing / trusts / wills / defamation /
contract / employment / statutory duty / negligence / consumer) (circumstances in which they may be liable to solicitor’s
costs, effect of statutory charge, duty to pay fixed / periodic contribution assessed and consequence for failure to do so, and
even if successful, other party may not be ordered to pay costs / may not be a position to pay them) IB1.16. Need notify
opponent if case is publicly funded.
- Basis and terms, whether charging rates would be increased, likely payments may need to make to others, potential
liability, whether specially purchased insurance may be purchased / coverage of existing insurance.
- Explain no win no fee arrangements: conditional fee agreement (circumstances in which client may be liable for
solicitor’s costs and whether solicitor will seek payment from client, and if so, client has right to assess those costs – if
successful, receive normal fee plus uplift, if unsuccessful, no fee payable throughout duration of case / lower fee) and
damages based agreements (receives a percentage of the damages recovered – capped at 50% for all other cases, 25% PI)
(x appeal).
- Litigation funding (3rd party pays fees in exchange for a portion of proceeds recovered – usually for big commercial
cases). Funder must have adequate financial resources to cover funding for 36 months and can only withdraw in limited
circumstances. Funding may be in full, partial or disbursements only.
Explain insurance (should consider whether client’s claim could be funded by any existing insurance they may hold e.g.
household / motor insurance (before the event), and solicitors have professional indemnity insurance, and if no, consider
taking out legal expenses insurance to cover own legal costs and/or opposing party (after the event))
Union and association funding (cover by virtue of client’s membership).
Cost considerations in litigation generally (costs are awarded at discretion of Court, losing party usually pays winner’s costs
but won’t get in full, conduct of party is taken into account, summary / detailed assessment)
Overriding objective (CPR1) Parties are on equal footing
Saving expense
Proportionate to amount of money involved, importance of case, complexity of issues, financial position of party
Expeditious and fair
Allocate case, appropriate share of Court’s resources
Ensure compliance with rules, Practice Directions and Orders
Resolving a dispute through a civil claim
3
, Calculating limitation Prevents a claim being brought after a period of time; protects a D from potential injustice of defending against a stale claim.
periods for claims in contract Issue of claim form stops limitation from running out
and tort Often a defensive measure to issue “protective proceedings”, after which investigations are carried out before claim form is
served (stop time running, preventing claim from being “time barred”)
Limitation periods commence when causes of action arises (contract: 6 years from date of breach; tort: 6 years from date loss is
suffered by breach of duty; PI: 3 years from “date of knowledge” i.e. knowledge of factual essence of the act / omission that
caused the loss and had enough information to make reasonable investigation into potential claim)
Limitation does not run where fraud is involved / a relevant fact is concealed until the fraud / fact is or could reasonably have
been discovered
Principles and purpose of CPR requires parties to comply with them before issuing court proceedings. If a specific protocol applies to the claim, it must
pre-action protocols be followed.
governing particular claims Practice Direction on Pre-Action Conduct covers all cases (whether or not a specific pre-action protocol also applies)
and consequences for failure - C should write to other side to give details of claim
to follow their terms - Within reasonable period, D should send a response letter (accept / reject in whole or in part)
- Parties should disclose key documents, engage in negotiations and make proposals to settle
Should act reasonably and try to avoid necessity of commencing court proceedings
Failure to follow: Most likely consequences will relate to costs and interest / may stay the proceedings until relevant steps are
taken.
Applicable law: Mechanisms “Which country’s laws govern the claim” i.e. choice of law / conflicts of law
to determine which country’s In situations where two or more countries’ laws might apply to a substantive dispute between the parties, Court must apply its
laws apply to a contractual or own choice of law rules to decide which country’s law will actually be applied to the substantive dispute between the parties.
tortious claim issued in the
courts of E&W
Jurisdiction: Mechanism to “In which country might proceedings be brought”. Under common law rules, the Courts of E&W will have jurisdiction over a
determine jurisdiction over foreign D if (presence or submission or permission):
an international contractual Presence – where the proceedings are served on the foreign D within the jurisdiction
or tortious claim - General rule is Courts have jurisdiction over natural or legal persons if the English court proceedings can be validly served
upon them (so service of proceedings is of fundamental importance).
o Personally served means: For an individual, by leaving it with that individual. For a company, by leaving it with a
person holding a senior position within the company. For a partnership, by leaving it with a partner / person who at
the time of service has the control or management of the partnership business at its principal place of business. In
circumstances where a foreign company has no presence within the jurisdiction, it is usually preferable for client to
effect service abroad. Also note that for foreign partnerships with no business presence in E&W, different jurisdictions
deal with legal status of partnerships in different ways – it is not safe to assume valid service on one partner of a
4
