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LPC Law Notes Civil Litigation Notes

Alternate Dispute Resolution Notes

Updated Alternate Dispute Resolution Notes

Civil Litigation Notes

Civil Litigation

Approximately 418 pages

A collection of the best LPC Civil Litigation notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC 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 Civil Lit notes available in the UK this year. This collection of notes is fully updated ...

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

Arbitration

Arbitration vs Litigation vs Mediation

Arbitration Litigation Mediation
Definition The procedure by which disputes are resolved by an independent third party. The procedure of going to court to settle a dispute in an adversarial process. The process whereby an independent third party facilitates negotiations.
Decision Binding and can be legally correct (ss.45, 52 & 69). Binding and legally correct. Made by the parties - mediator has no input.
Rules Mandatory rules listed in Schedule 1 Covered by the CPR. None unless decided by parties.
Enforcement Enforceable decisions (s.66) as well as international enforcement (New York Convention) Enforceable (CPR 70-73) If agreement is recorded in a Consent Order it can be enforceable.
Other Advantages
  • Choose the arbitrator - often a specialist or expert

  • Choose the procedural rules

  • Private hearing and confidentiality (avoids publicity)

  • Commercial and non-legal solutions

  • Rules of precedent = predictability

  • Judge considered documentary evidence and experts/witnesses

  • Legally binding and correct decision

  • Cheaper if settlement is reached

  • Quicker, flexible and informal

  • Non-adversarial; win-win result

  • Commercial solution

  • Collaborative solution

  • Confidentiality

Other Disadvantages
  • Costly (arbitrator, venue, agreement negotiation, court applications etc.)

  • Cannot join third parties without consent

  • Lack of interim judgments e.g. summary judgments

  • Public trial

  • No control over procedure or rules

  • Costly and time consuming

  • Adversarial process - damages relationships

  • Increase costs if unsuccessful

  • No guaranteed solution or engagement in process

  • Mediator may not be an expert

Responding to Claim Forms

If the claimant has filed a claim form then the defendant should file an acknowledgement of service so that the claimant cannot apply for judgment in default. In the acknowledgement of service, the defendant should indicate that they are contesting the court’s jurisdiction by ticking the relevant box in the form. In accordance with CPR 10.3 the acknowledgement of service should be filed within 14 days of service of the particulars of claim being served.

Under CPR 62.8 the defendant should make an application to court asking for a stay of proceedings pursuant to s.9 AA in which the court should stay the proceedings because there exists a valid and binding arbitration clause which means the court should allow the case to be dealt with arbitration. s.9 AA is a mandatory provision so it cannot be excluded by the parties.

In the application, the defendant should submit:

An Application Notice (Form N244);

A Draft Order; and

Evidence in Support (usually in the form of the witness statement supported by a statement of truth).

The evidence should establish that there is a binding arbitration clause (pursuant to s.5(1) and s.6(1) AA) and show that the current dispute falls within the parameters of the clause.

Commencing Proceedings

Appointing an Arbitrator

Proceedings are commenced when one party serves notice on the other instructing them to appoint an arbitrator (s.14(4));

Each party appoints one arbitrator within 14 days of the notice being served (s.16(5)(a)). If a party fails to appoint an arbitrator then the other party can serve notice on them stating that they will use a sole arbitrator appointed by the non-defaulting party (s.17);

The two appointed arbitrators shall appoint a third arbitrator to make up the panel (s.16(5)(b)). If the two arbitrators fail to appoint another arbitrator the parties can apply to court for an appointment of the third arbitrator under s.18(3);

The tribunal will be formed and decisions are made on competency and compliance with duties (ss.30 & 33).

General Duties

s.33 sets out the arbitrator’s general duties; these are to act fairly and impartially, to avoid any unnecessary delay or expense and to allow each party to put forward their case.

s.40 sets out the parties’ general duties; these are to comply with the proceedings, directions and orders of the tribunal and to apply to court where relevant.

Procedure of Arbitration

Pre-Arbitration - the arbitration will be dictated by the arbitration clause or agreement. These are defined in ss.5 & 6 which requires the agreement to be in writing and...

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