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Unit 1 – Initial Steps In Resolving A Commercial Dispute Notes

LPC Law Notes > Commercial Dispute Resolution Notes

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Unit 1 - Initial steps in resolving a commercial dispute consolidation r = CPR rule Commercial litigation: (More than one court may be appropriate given the claim) Carried out in the country courts and QBD of High court but there are specialist courts: QBD a) Commercial court - commercial and mercantile disputes
? business doc or contract
? export/import of goods
? carriage of goods by land, air or pipeline
? exploitation of oil and gas reserves or other natural resources
? insurance/re-insurance
? banking and financial services
? operation of markets and exchanges
? purchase and sale of commodities
? construction of ships
? business agency
? arbitration-

b)

Mercantile court in London - disputes which are less complex or of smaller value that the commercial court

c)

Regional Equivalents of a) and b) - Birmingham, Bristol, Cardiff, Mold, Leeds, Liverpool, Manchester and Newcastle

d)

TCC - construction and engineering disputes as well as those of a technical nature. Sits in London but District registries in which a TCC judge sit are available in Birmingham, Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool, Newcastle, Nottingham and Salford. TCC claims may also be issued in country courts of above locations as well as Central London Country Court
? building/construction disputes
? engineering disputes
? claims by/against architects, surveyors, accountants, specialist advisors, local authority regarding stat duties over development of land or construction of buildings
? Claims related to design, supply and installation of computers, software and networks
? Claims relating to quality of goods sold/hired, word done, materials supplied, services rendered
? Claim between L and T for breach of repair cov
? Claim between neighbours, owners/occupiers of land for trespass/nuisance
? Claims related to environment (pollution)
? Claims arising out of fires
? Claims involving taking of account where complex
? Decisions of arbitrator in construction and engineering deposited including app for permission to appeal

Chancery Division, general list- bankruptcy, dissolution of partnerships, matters affecting affairs of co, commercial property/unregistered IP rights (passing off, UDR, (c), implied confidential info) Chancery Division, companies court - Constitution of a company/ insolvency of co's Chancery Division, bankruptcy court - Bankruptcy of individuals

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Chancery Division, Patents court - Registered IP rights (TM, RDR, Patents)

ADR: CPR 1.4(2)(e) one of courts case management powers as "encouraging the parties to use an alternative dispute procedure if the court considers that appropriate and facilitating the use of such procedure" o Sol who fails to advise on availability of ADR may be negligent o Could almost amount to breach of P4 (not acting in best interests of client) Arbitration: Arbitration clause requires arbitration Dispute decided by one or more arbitrators who are usually experts chosen from a particular field/professional body The decision (arbitration award) is binding on the parties and enforceable through the courts Adv. of arbitration over litigation:Parties choose own arbitrator(s) who have professional experienceLess need for parties to call their own expert evidenceSaving of time and therefore of costsNo fixed procedure (parties have preliminary meeting with arbitrator where they work out timetable for arbitration and procedure) o Formal hearing o Informal site meeting o Documents onlyCan take place at a time and place which suits partiesTotal privacy is possible (trade secrets)Greater finality because there is no appeal on question of fact Dis. of arbitrationIf dispute is over a point of law then arbitration isn't suitableDispute may require remedies that only the court can give (enforcement of an injunction) o S.44 Arbitration act 1996 enables the court to supplement arbitrators powers but they are still usually best dealt with by litigationNot cheap - lawyers charge same prices as litigation, parties have to hire a room for the hearing and pay the arbitrator (experienced professional) his fee Funding the action: CFA - can be used by clients who would be able to fund the litigation themselves ATE - premiums will be high TP funding - both own and opponents costs in return for a share of any money recovered by C 25-50% (last resort) Jackson Report: a) Abolition of recovery of success fees and ATE insurance premiums - s.44/46 LASPO 2012 b) Banning of referral fees in personal injury cases c) Allowing the use of contingency fees in contentious work - s.45 LASPO 2012 (DBA's - see below) d) Fixed pre-trial costs in fast track cases e) Unsuccessful C would not be required to pay the successful D costs - s.55 LASPO 2012 f) A voluntary code of conduct for TP litigation funders g) Greater case management powers for courts (costs management). Allocating judges who have relevant experience. Limit the length of WS and expert reports. Hot tubbing experts (expert evidence of both sides heard concurrently on issue by issue basis) h) Greater incentives to accept settlement (automatic 10 increase in damages where D fails to beat C Part 36 offer) i) Encouraged but not mandatory ADR

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