Someone recently bought our

students are currently browsing our notes.

X

Adr And The Courts Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

Updates Available  

A more recent version of these Adr And The Courts notes – written by City Law School students – is available here.

The following is a more accessble plain text extract of the PDF sample above, taken from our Alternative Dispute Resolution Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

ADR: REVISION TOPIC 1: ADR & THE COURTS Objectives:

* Under Historical Background

* Definition of "ADR"

* Court Recognition of ADR

* Approach of Civil Procedure Rules ("CPR") to ADR

* Judicial Encouragement of ADR

* Sanctions for Refusing ADR HISTORICAL BACKGROUND TO ADR 1998

* 1998 - former procedural rules (CCR - County Court Rules and RSC - Rules of Supreme Court for High Court Cases) acknowledged ADR as potentially relevant to all civil actions

* Positively encouraged ADR at pre-action stage and after litigation commenced

* Some Courts issued practice notes advocating use of ADR 1999 - CPR (via Woolf Reforms)

* CPR came into force in April 1999

* Put ADR at centre of justice system for civil cases

* Ethos: Litigation as last resort

* Contained rules encouraging ADR

* Since CPR came into force - ADR has developed, esp. mediation, ENE and ED. 2009 - Jackson Review

* L.J Jackson, 'Review of Civil Litigation Costs' (issued: December 2009)
* Recommendation 6.3 - ADR has a vital role to play.
# Should be serious campaign to ensure that all litigation lawyers properly informed about how ADR works and its benefits Government Position

* Main proposals accepted by Government in March 2011

* Government policy showing increasing support for ADR - belief that; "Access to justice for all parties depends on costs being proportionate and unnecessary cases being deterred."

* March 2012: Proposal that all Small Claims be referred to mediation (though not compulsory they are resolved by mediation)

* Package of reforms likely to be implemented in April 2013:
* Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 2 , and
* Amendments to CPR Growth of ADR Options

* First Statute: Arbitration Act 1697

* First tribunal to adjudicate disputes - Set up under National Insurance Act 1911

* 1975 - 'Advisory, Conciliation and Arbitration Service' (ACAS) set up
* Government funded
* Independent, focus on supporting employment relationships

* 1990 - 'Centre for Effective Dispute Resolution' (CEDR) launched with support of the Confederation of British Industry.

WHAT IS "ADR"?

*

*

"ADR" does not have an agreed definition Taken to cover alternatives to litigation where:
* There is a dispute between 2+ parties
* Dispute relates to civil rights and/or duties
* Dispute could potentially go to court for resolution
* Dispute resolved through another process with a more flexible structure
* Process is essentially confidential,
* Process involves individuals other than parties, who add some degree of objectivity (lawyers and/or independent/neutral third party)

Disadvantages of Litigation

* Civil procedure rules are complex - can extend time and costs of resolving dispute

* Extensive rules of evidence and disclosure - may be burdensome where wide-range of relevant documents or client concerned about confidentiality

* Objective of Courts to develop law through precedent - individual may not want to go to COA or Supreme Court to resolve issue of law.

* Adversarial system - not in parties' interests if ongoing relationship

* Detailed Court procedures - may not be appropriate where case turns on single technical issue

* Judge controlled - may not suit clients who wish to have control over outcome

* Past-focussed - may be better to take wider contextual view of dispute, or focus on future.

* Powers to Order - may be in client's interests to have wider-range of settlement options embracing agreements which court cannot order. COURT RECOGNITION OF ADR Growth in Court's Recognition of & Support for ADR

* Use of offers to settle encouraged in Calderbank v Calderbank [1976]
* Written offer to settle could be brought to attention of judge when considering costs
* Formalised into Part 36 offers.

* 1994 - Commercial Court: 'Practice Note: Commercial Court; Alternative Dispute Resolution'
* Requires lawyers to consider ADR with their clients

* 1995 - High Court: 'Practice Note: Civil Litigation; Case Management'
* Mainly provided for greater judicial control over cases
* Included questions on whether lawyers discussed ADR with client and other party.

* 1997 - Voluntary Mediation Scheme attached to COA
* March 2012 - Announced pilot scheme - All COA cases to be referred to mediation unless judge ordered otherwise.

* 1998 - Woolf Reforms - CPR
* Encouragement of ADR built into WR, then expressly and impliedly into CPR

* CPR expressly encourages ADR prior to litigation
* r44.5 - Determining whether proceedings issued prematurely (for costs) - have parties considered/used ADR?
* Pre-Action Protocols (amended in 2003) - Letter before claim should state if party wishes to enter mediation or other form of ADR

* 2007 - Use of ADR standardised in County Courts

* 2008 - Full-time mediation officer in each area

* Provides common and subsidised mediation procedure,
* Supported by National Mediation Helpline and CMC (since 2011) ENCOURAGEMENT OF ADR Sources of Encouragement

* Court Guides

* Pre-Action Protocols

* Court's inquiry about parties' use/consideration of ADR at Track-Allocation Stage

* Court willingness to grant a stay for consideration/use of ADR

* Judicial encouragement of ADR developed through case-law

* Willingness of courts to uphold/enforce ADR clauses in contracts CPR - The Overriding Objective

* r1.1 (Overriding Objective) - Inc. saving time and expense, and proportionality in dealing with cases.
* Judges required to further Overriding objective in active case-management

* r1.3 - Parties and lawyers under duty to assist court in furthering Overriding objective

* r1.4(1)(a),(e),(f) * Judges should encourage parties to co-operate by using ADR
* Court should facilitate use of ADR (eg. stays, extensions of time)
* Judges should help parties settle "whole or part of case"
* Case Management Orers can direct parties to consider ADR and give reasons for failing to use it.

* r1.4(2) - Active case-management includes:
* Encouraging parties to use ADR if court considers it appropriate and facilitating its use
* Helping parties to settle whole/part of case Stages when ADR should be Considered

1. Pre-Issue
* To save time and costs of litigation
* Disadvantages:
# Issues not yet clearly defined
# Merits and quantum not easily assessed

2. Track-Allocation
* Each side's case has been defined in statements of case
* Disadvantages:
# Disclosure not yet taken place, so difficult for accurate assessment of merits

3. After Disclosure
* Accurate evaluation of case by both sides
* Disadvantages:
# Large amount of time and costs all ready incurred Court Guides Admiralty & Commercial Courts - Section G
* G1.4 - Encourages parties to consider ADR, requires lawyers to consider ADR with clients and other parties as means to resolving dispute/issues within it.
* G1.7 - Parties can apply for court directions on ADR at any stage (including before serving defence or before case management conference)

* Case Management Sheet - Q: Would parties like an ADR Order (Appendix 7) - If court

Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.