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Courts Approach To Adr And Sanctions Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

This is an extract of our Courts Approach To Adr And Sanctions document, which we sell as part of our Alternative Dispute Resolution Notes collection written by the top tier of City Law School students.

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:

COURT'S APPROACH TO ADR PD pre-action conduct

? aim = enable settlement without proceedings / efficient management of proceedings if unavoidable

? proceedings = last resort; don't commence if settlement being actively explored
? court expects compliance ? may ask for explanation of: steps taken before issue of claim /
failure of comply

? parties encouraged to o consider ADRconsider ADR before starting proceedings + court may require evidence of considerationexplore settlement at all times, even after issue of proceedings +
during trial etc.

o exchange infoexchange enough info to enable understanding of each other's position, informed decisions (unless circumstances make inappropriate e.g. limitation)attempt to resolve without issuing proceedings (inc. ADR)

? C should send D detailed letter before claim, setting out suitable form of ADR + inviting D to agree

? D should send C detailed response, indicating whether D agrees to ADR proposals, if not why not + suggest alternative form of ADR / give reasons why ADR not appropriate Pre-action protocols

? general requirements o early notification of claim to D o consider ADR + endeavour to agree which form to use + may need to produce evidence considered

o o o o o

detailed letter before claim containing info about the claim and remedies give D reasonable time to investigate claim and respond detailed response letter indicating whether claim disputed early disclosure of relevant documents joint experts

OO and active case management

? court, parties, lawyers must further OO of dealing with cases justly and at proportionate cost

? court must further OO by active case management, including o encouraging co-operation between parties o ID issues at early stage o encouraging + facilitating ADR if court considers appropriate

o helping parties settle in whole or part
? court can direct parties to consider ADR at case management conference or pre-trial review via an Ungley Order

o consider ADR by certain date o if party thinks unsuitablenot less than 28 days before trial file witness statement (WP save as to costs) giving reasons+ justify at trialif trial judge thinks ADR wrongly refused ? costs sanctions

DQs and ADR

? procedure (1) (2) (3) (4)

D files defence court officer provisionally allocates track court officer serves notice of proposed allocation on each party parties must file DQ by date in notice of proposed allocation

? DQ o legal rep must confirm has explained need to try ADR, options, possible costs sanctions

o parties must answer:do you want to attempt to settle given rules require you to attempt ADR?if Y, do you want a 1 month stay?if N, state why ADR inappropriate

o ? if court thinks reasons inadequate can direct parties to consider ADR and grant stay of own motion (BUT cannot compel parties to undertake ADR) Stay for ADR / settlement

? stay can be granted at track allocation or any stage o by order of court o on application by one or both parties o by court of own motion
? usual = 1 month
? if stayed at track allocation, case not allocated until end of stay
? any party may apply for stay to be lifted (PD 26A para 3.3)
? court may extend stay (r26.4(3))
? if settlement reached, C must tell court + will probably lodge settlement order
? if no settlement by end of stay ? C must apply to get stay lifted + for directions for litigation

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