BPTC Law Notes Alternative Dispute Resolution Notes
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
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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
consider ADR
consider ADR before starting proceedings + court may require evidence of consideration
explore settlement at all times, even after issue of proceedings + during trial etc.
exchange info
exchange 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
early notification of claim to D
consider ADR + endeavour to agree which form to use + may need to produce evidence considered
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
encouraging co-operation between parties
ID issues at early stage
encouraging + facilitating ADR if court considers appropriate
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
consider ADR by certain date
if party thinks unsuitable
not less than 28 days before trial file witness statement (WP save as to costs) giving reasons
+ justify at trial
if trial judge thinks ADR wrongly refused costs sanctions
DQs and ADR
procedure
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
legal rep must confirm has explained need to try ADR, options, possible costs sanctions
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
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
by order of court
on application by one or both parties
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
Judicial encouragement of ADR
R(Cowl) v Plymouth CC 2002 - JR can be refused if parties fail to consider ADR + an extra-judicial complaints procedure is in place which is capable of resolving issues
(un)willingness to consider ADR if appropriate affects costs
BUT not alternative to litigation
judge should strike balance of encouraging parties of suitable cases to mediate, but not being too forceful or pushing unsuitable cases into mediation
voluntary mediation achieves higher settlement rates than compulsory
Approach of courts to contractual ADR clauses
= clause by which parties agree to resolve dispute primarily by ADR
may specify method / several methods which need to be exhausted in turn
if method adjudicative, may specify that parties to be bound by decision
if parties agree on particular method court may
stay proceedings brought in breach + require parties to use method
only if cannot be recovered via breach of contract action award damages for costs reasonably incurred re: proceedings brought in breach of clause not recoverable in proceedings themselves
requirements for clause to be binding
Holloway v Chancery Mead
process must be certain, so no agreement needed at any stage to proceed
admin process for selecting + paying party to resolve dispute must be defined
detail of process certain
what court takes into account in deciding whether to stay (if clause clear)
compliance with pre-action protocol
suitability for agreed ADR process
costs compared to litigation
OO
Can the court compel parties to use ADR?
current position (Halsey v Milton Keynes)
CANNOT compel parties to: use ADR / if use, reach settlement
infringes art 6 (right to fair trial)
mediation more effective if voluntary
BUT court can (and will) robustly encourage party to use ADR by way of court order
unreasonable refusal may result in costs sanction
art 6 point
doubted by commentators: stay only delays right of access / other EU countries have compulsory mediation / EU Mediation Directive implies
textbook: ordering parties to undertake non-adjudicative process NOT breach of art 6, provided parties can still issue / continue proceedings if fail to settle
SANCTIONS FOR REFUSING TO ENGAGE IN ADR
court can penalise party who unreasonably refuses to:
comply...
Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
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