Civil Litigation (BSB 21_23.08) PDF

1 | GENERAL MATTERS OVERRIDING OBJECTIVE — CPR 1.1 to 1.3 CPR 1.1 CPR 1.1(1) OO OO = dealing with cases justly and at a proportionate cost. achieve a fair resolution of disputes in a timely and cost-effective manner. CPR...

1 | GENERAL MATTERS OVERRIDING OBJECTIVE — CPR 1.1 to 1.3 CPR 1.1 CPR 1.1(1) OO OO = dealing with cases justly and at a proportionate cost. achieve a fair resolution of disputes in a timely and cost-effective manner. CPR 1.1(2) Includes – (a) Ensuring the parties are on an equal footing, can participate fully in proceedings, parties and witnesses can give their best evidence; — comm 1.1.2 Equality of arms: an equal opportunity to present their case and have a fair chance to be heard. (b) Saving expense (c) Dealing with the case in a way which is proportionate – (i) To the amount of money involved (value) (ii) To the importance of the case (iii) To the complexity of issues (iv) To the financial position of each party (d) Ensuring that it is dealt with expeditiously and fairly (e) Allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. (f) Enforcing compliance with rules, PDs and orders — comm 1.1.1.1 Principle of finality A court decision that sets a precedent applies to current + future cases, but not to cases that already concluded. Changes in the law ≠ justify avoiding/complying w/ a judgment. — comm 1.3.1 Rules 1.1 to 1.3: Effect of rules CPR 1.2 The court must seek to give effect to the OO when it— Court’s duty re OO (a) exercises any power given to it by the Rules; or (b) interprets any rule (subject to rules 76.2, 79.2, 80.2, 82.2 and 88.2.) CPR 1.3 The parties are required to help the court to further OO. Parties’ duty re OO — comm 1.3.2 Parties have no direct duty; r.1.3 duty in so far to assist the court. Eg. parties agreeing to reasonable time extension that does not imperil future hearing dates or proceedings. (Hallam Estates Ltd v Baker ) — CPR 3.1(8) Allows the court to contact the parties to monitor compliance with directions; parties required to respond promptly. Blue = common exam Qs COURT’S DUTY: MANAGE CASES — CPR 1.4, comm. paras 1.4.4, 1.4.9 and 1.4.11 (Vol 1, WB) CPR 1.4 (1) The court MUST further OO by actively managing cases. Court’s DUTY: manage cases (2) Active case management— (a) Encourage parties to cooperate in the conduct of proceedings; — comm. 1.4.4: court’s power on cost — incentivise responsible behaviour + deter unreasonable conduct. (cont.) E.g. stay proceedings to consider ADR; parties can extend time limits by consent; use of single joint expert etc. — CPR 44.2 + 44.4 Court’s discretion on costs (b) Identify the issues at an early stage; (c) Decide promptly which cases need full investigation + trial, and dispose of others summarily; E.g. summary judgement, where no reasonable chance of success (d) Deciding the order of issues to be resolved; (e) Encourage + facilitate use of ADR, when appropriate; With cost sanctions for non-compliance; part of pre-action conduct. — comm. 1.4.11: Incl. hearing / ordering the use of early neutral evaluation (r.3.1(2)(m)). — vol 2, s.14: detailed commentary (f) Help parties to settle the whole/part of the case; Cost sanctions on Part 36 offers, and general discretion on Calderbank offers. — comm. 1.4.9: This covers both pre-litigation (pre-litigation disclosure (r.25.1(1)(i) and (j) and rr.31.16 and 31.17 ), ADR (vol 2, s.14) + post-litigation (pt. 36 offers, summary disposal of issues). (g) Set timetables/control case progression; (aka traditional narrow definition ‘case management’) (h) Weigh the benefits of taking a step vs. its cost; – comm. 1.4.10: i.e. proportionality. (i) Deal with as many aspects of the case in one session; (j) Handle the case w/o parties’ court attendance; (k) Make use of technology; and (l) Give directions for a quick, efficient trial. E.g. fast-track allocation; using WS for EIC as default CPR 1.4. = Court’s case management DUTY CPR 3.1. = Court’s case management POWERS Blue = common exam Qs GENERAL PRINCIPLES OF ALTERNATIVE DISPUTE RESOLUTION (ADR) general principles of ADR; compulsion to use ADR; motivations for the use of ADR; criteria for the selection of an ADR option; when ADR may not be appropriate; roles and responsibilities of lawyers and parties in ADR; duties under the Civil Procedure Rules; the role of a lawyer in advising on ADR; authority to settle; the approach of the courts to ADR; judicial encouragement of ADR; whether the courts can compel the parties to use ADR; case management powers and ADR; directions questionnaires and ADR; granting stays for ADR; sanctions for refusing to engage in ADR processes; unreasonable refusal to consider ADR; other factors considered by the court; the claimant’s failure to initiate ADR processes; silence in the face of an invitation to use ADR; and practical steps which should be taken by a party to avoid sanctions. paragraphs 1.22-23; 2.30-2.61; 4.02-4.03, 4.07-4.08; 9.05, 9.06-9.07, 9.11-9.12, 9.20, 9.22-9.25; and 11.07-11.23, 11.34-11.37, 11.59-11.61, and 11.63-11.64 of The Jackson ADR Handbook (Third Edition, 2021). Students should also be able to refer to the specific leading case authority by name: Halsey. Examinable material on timing the use of ADR will consist of timing the use of ADR in relation to the progress of a case; procedural factors relevant to timing; the use of ADR at an interim stage; and practical factors relevant to timing. The relevant material is addressed in paragraphs 3.04-3.11, 3.14-3.16, and 3.24-3.34 of The Jackson ADR Handbook (Third Edition, 2021). Explanatory material which will NOT be assessed: paragraphs 1.01-1.10; 2.02-2.24; 2.27; and 11.01-11.03 of The Jackson ADR Handbook (Third Edition, 2021) Blue = common exam Qs 2 | LIMITATION — Limitation Act 1980 / WB Vol 2 ACCRUAL OF CAUSE OF ACTION — s1 (paras 8-3.1 and 8.3-2 of Vol 2) Accrual: when all the elements of the cause of action exist, depends on the particular type of claim. para 8-3.1, Vol 2 Eg. 1: deadline expires at midnight (12am): Date from which any cause of action from missing deadline accrues immediately limitation Limitation period = starts at 12.01am. calculated If a cause of action arises during the day (e.g., 2pm on 4 Oct 2021): That day is excluded. Limitation period starts the next day (5 Oct 2021). para 8-3.2, Vol 2 — CPR 7.2(2) + PD 7A Para 5.1 Date when an Date of issue: when the court issues CF at C’s request. action is ‘brought’ (started) However, if the court receives CF before it is officially issued, claim = considered "brought" on the earlier received date for the purposes of LA 1980 + other relevant statutes. Other cases Even if the correct fee was not initially paid due to later claims alleging higher loss, LA 1980 still considers time stopped at the date of issue. A new claim added through amendment within the limitation period won't become time-barred later if the court fee hasn't been paid. The stay of proceedings did not contribute to time limit for serving a CF. During the period of a stay, no steps in the action, by any party, were required or permitted. LIMITATION AS A STATUTORY DEFENCE — s2 (para 8-6, Vol 2) Expiration of limitation period ≠ bar C from filing a claim. D must plead limitation as a defence. — PD 16 para.13.1 D must provide details of the expiry of any relevant limitation period. Blue = common exam Qs PART I: ORDINARY TIME LIMIT (subject to extension/ exclusion under part II) Claim Type Limitation Period Date of accrual — s2 (para 8-4, Vol 2) 1. Tort: negligence, nuisance, 6 years Date of DAMAGE trespass (Nuisance = date nuisance occurred) — s4A (para 8-9) 2. Defamation: libel, slander, 1 year Date when statement is published malicious falsehood — s5 (para 8-11) 3. Contract (+ Tomlin order1) 6 years Date of BREACH — s10 (para 8-21) 4. Contribution 2 years Date RIGHT TO CONTRIBUTION accrues – (cf. s1 Civil Liability with possible (Contribution) Act 1984) extension under If person is held liable (s10(3)): subject to s28, 32, 35. s.28 (disability) or (i) date of judgement/arbitration award, ie. s.32 (fraud, final sum (regardless of any appeals) s/t s.35: timing for bringing 3rd concealment, party proceedings, set-offs, mistake) If not (s10(4)): counterclaims (ii) date of agreement to settle (whether liability is admitted / not) Part II + III do not apply, except Eg. part 36 offer = date of acceptance for s34, 37, and 38. — s11 (para 8-23) 5. Personal Injury 3 years EITHER: (whichever later) (cf. CPR r.2.3(1), with possible (i) date of INJURY encompasses all extension under s.14 (ii) date of injured person’s KNOWLEDGE proceedings (from date of (tort, contract, statute)). knowledge) or If injured person dies before 3 y limit: exclusion under s.33 (i) date of DEATH (court's discretionary (ii) date of personal representative’s power). KNOWLEDGE (whichever later) — s12 (para 8-27) 6. Fatal Accidents Act 1976 3 years EITHER: subject to s28, 33, 33B, and with possible (i) date of DEATH 35, time limit: s39. extension under s.14 (ii) date of KNOWLEDGE of person for (from date of whose benefit the claim is brought Parts II + III do not apply. knowledge) or exclusion under s.33 If death AFTER 3 y limit, CANNOT claim (court's discretionary power). 1 See: para 8-12.1, Vol 2 + Bostani v Pieper : a Tomlin order is a simple contract for the purposes of LA 1980 → subject to the 6-year time limit. Blue = common exam Qs  7. Latent Damage (Non-PI Negligence) — s14A (para 8-41) EITHER: (IN TORT, not contract), e.g. 6y (i) date of ACCRUAL negligent house survey If expired, + 3 y (ii) date of KNOWLEDGE of damage — s14B (para 8-45) OVERRIDING TIMELIMIT 15 years Date of NEGLIGENCE relied upon. (excl. s11) (long-stop period) Even where cause of action not accrued (eg. no damage) / no KNOWLEDGE (s.14A(5)). — s24 (para 8-63) 8. Enforcement of court 6 years From Date on which JUDGMENT BECAME judgement ENFORCEABLE (normally after 28 day period from — s24(1) (para 8-64) judgement in which D can pay) Incl. only FRESH ACTIONS (narrow; generally foreign judgements). Where there are existing proceedings, there is NO LIMIT on enforceability. — s24(2) Interest arrears on judgments are unrecoverable after 6 years, regardless of recovery method. (eg. fresh action/ execution on original judgment). ADDITIONAL CONSIDERATIONS para 8-33 D can assert limitation defences under (unamended) Limitation Act 1939 if the Actions for cause of action arose long ago. damages (PI / — Arnold v Central Electricity Generating Board death) — McDonnell v Congregation of Christian Brothers Trustees, cited at para. 8-3. para 8-36 FAA cases w/ multiple Ds + varying dates of knowledge (s.13(1)): Time limits under those barred by limitation = excluded, unless proven that exclusive action for the Fatal Accidents their benefit wouldn't be defeated by a limitation defence, considering factors Act like s.28 FAA / agreements not to raise the defence (s.13(3)). Blue = common exam Qs DATE OF KNOWLEDGE (for s11 PI and s12 Fatal Accidents Act claims): — s14 (para 8-31, Vol 2) — s14(1) (a) Injury = SIGNIFICANT Date on which (extent of injury; not nature, cause, commonality); relevant person — s14(2) FIRST had Significant = Would C reasonably consider the injury SUFFICIENTLY knowledge of ALL of the following SERIOUS to justify suing a D who (1) didn’t dispute liability + (2) could facts: satisfy a judgment? (para 8-39.3) (Part objective + subjective) Considering C + C’s intelligence, was it reasonable to deem the injury sufficiently serious? Time doesn't lapse if C reasonably deemed the injury not serious enough for legal action. (b) Injury = ATTRIBUTABLE (not "caused," per para 8-39) wholly/partly to the act/omission alleged as the cause of action (e.g., negligence). (c) IDENTITY of D (para 8-39.1); If someone other than D is alleged to have committed the act/omission, (d) identify that person + any additional facts supporting action against D. — para 8-38, Vol 2 Knowledge of relevant facts starts the limitation period. It’s IRRELEVANT whether C realises they have a claim based on those facts. — s.14(1) IRRELEVANT: the legal aspects regarding whether an act / omission involved negligence, nuisance, or breach of duty. — s14(3) Knowledge C could reasonably be expected to acquire – A person’s (a) From facts OBSERVABLE + ASCERTAINABLE to him; or knowledge (b) From facts ASCERTAINABLE with MEDICAL/EXPERT ADVICE which are reasonably obtainable. If C made reasonable efforts to obtain + follow expert guidance, C is not accountable for lacking knowledge that requires specialised expertise. Blue = common exam Qs DATE OF KNOWLEDGE (for s14A Latent Damage claims): — s14A (para 8-41, Vol 2) This section was added by the Latent Damage Act 1986 s.1; — s14A(6) and The required KNOWLEDGE to bring an action includes— s14A(8) (1) Knowledge of MATERIAL FACTS regarding the damage claimed; Material facts = facts that would lead a reasonable person (who suffered S2 and such damage) to consider the damage SUFFICIENTLY SERIOUS to justify suing a D who (1) doesn't dispute liability + (2) can satisfy a judgment. (Part objective/subjective). (2) Damage = ATTRIBUTABLE wholly/partly to the act/omission claimed as negligence. (3) IDENTITY of D (4) If someone other than D is alleged to have committed the act/omission, identify that person + any additional facts supporting action against D. — s14A(10) As above, includes: (1) facts reasonably OBSERVABLE + ASCERTAINABLE; and (2) facts ASCERTAINABLE with MEDICAL/EXPERT ADVICE which are reasonably obtainable. para 8-43 Applies only to negligence (tort), not breach of duty from a contract. If C's knowledge is disputed + relies on Resolution shouldn't be through D's strike-out application but at trial or a contested facts: preliminary issue hearing (Iron Trades Mutual Insurance Co Ltd, at 824). BURDEN OF PROOF para 8-37 + 8-43 Burden = C; on accrual of cause of action / C’s initial knowledge of relevant facts Legal burden under s.14 + s.14A (for 3-year extension). Blue = common exam Qs EXTENSION/ POSTPONEMENT OF LIMITATION PERIOD (LA 1980) — s28 (para 8-73, Vol 2) and s32 (para 8-84, Vol 2) Category Conditions Limitation Period — s28 and 38(2)(3) Disability (1) MINOR ( = MORE THAN (c) Clinical Disputes; (d) Disease/Illness; or (e) PI claims below small claims limit in RTA (“RTA Small Claims Protocol”). 1.1.2 If C values claim > fast track limit, notify D ASAP. Protocol approach = suitable for higher value (intermediate/multi-track) claims. 1.4 1.4.1 THIS Protol = expected pre-proceedings conduct, establishes: Reasonable process/timetable for information exchange; Standards (content/ quality) for Letters of Claim, and Conduct pre-action negotiations. Certain sections on rehabilitation likely apply to all claims. 1.4.2 Timetable + arrangements: disclosing documents/obtaining expert evidence may be VARIED to fit circumstances of the case, but court expects reasons for any Protocol deviations. 1.5 Failure to comply with Protocol may lead to court sanctions. Court considers: Parties' substantive compliance (w/ principles/requirements). Impact of non-compliance on the other party. Court ignores minor/technical issues (paras 13-15 PD on Pre-Action Conduct and Protocols). C2-002 1.6 Early Issue D = 3 MONTHS to investigate/respond before proceedings. If limitation period near expiry, C’s solicitor should give NOTICE OF INTENT to issue proceedings ASA practicable. Parties may seek: extension from court for service of docs/defence; or stay of proceedings to comply w/ Protocol. Blue = common exam Qs C2-003 1.7 Litigants in Person LIP should still, in so far as reasonably possible, fully comply with Protocol. = unrepresented "Claimant" = incl. C’s legal representative. GENERAL AIM OF PROTOCOL C2-004 2.1 Protocol’s (a) ENCOURAGE EXCHANGE OF FULL INFO ABOUT DISPUTE; objectives (b) ENCOURAGE EARLIER PRE-ACTION INVESTIGATION; (c) AVOID LITIGATION BY AGREEMENT TO SETTLEMENT BEFORE PROCEEDINGS; (d) SUPPORT JUST, PROPORTIONATE AND EFFICIENT MANAGEMENT OF PROCEEDINGS (WHERE LITIGATION CANNOT BE AVOIDED); (e) PROMOTE MEDICAL/ REHABILITATION TREATMENT (NOT JUST IN HIGH VALUE CASES) ADDRESS NEEDS OF C AT EARLIEST OPPORTUNITY. STEPS PARTIES EXPECTED TO TAKE BEFORE PROCEEDINGS COMMENCED C2-005 / C2-017 Annexed A (flow chart) — Likely Progression of the Claim Under this Protocol Blue = common exam Qs LETTER OF NOTIFICATION (LON) C2-006 3.1 Letter of C/ legal representative MAY notify D/insurer as soon as they know claim is likely, Notification before detailed Letter of Claim, esp if D has no/ limited knowledge of the incident; or where C incurs significant expenses hoping D might pay in whole/ in part. 3.2 LON should inform D and/or insurer of any relevant info to assist in: determining issues of liability; or suitability of the claim for an interim payment and/or early rehabilitation. 3.3 If C/legal rep. sends a Letter of Notification before a Letter of Claim ≠ start the timetable for the Letter of Response. However, LON should be acknowledged within 14 days of receipt. LETTER OF CLAIM (BY C) C2-008 5.1 Letter of Claim Subject to para 5.3, C should send to proposed D with 2 copies of LOC (for D and (LOC) insurer). The latter should be sent ASAP, and in any event, within 7 DAYS of D receiving it. 5.2 Annexe B1: template for LOC. Level of detail varies per case. IN ALL CASES, D should have: sufficient info to assess liability; and estimate likely size + heads of claim w/o detailed quantum. 5.3 Unless impracticable, LOC should incl— Summary of facts; Nature of injuries; Impact on C’s daily life; Prognosis; Financial loss; Heads of damage; Loss amount. 5.4 After D responds to LOC + confirm insurer’s identity, C should provide D’s insurer: Blue = common exam Qs  Details of C’s NIN and DOB; This info not to be inc in LOC. 5.5 5.5.1 Where a claim NO LONGER CONTINUES under low value protocol, Claim Notification Form (CNF) completed by C can be used as LOC under THIS Protocol. Unless, D notified C that CNF lacks info. 5.5.2 Where a claim NO LONGER CONTINUES under RTA Small Claims Protocol, Small Claim Notification Form (SCNF) completed by C can be used as LOC under THIS Protocol. 5.6 After C sent LOC, no further investigation on liability within the Protocol period UNTIL D responds on whether liability is disputed. C2-009 5.7 LOC + Response: Letters of claim/response ≠ statement of case. Status A party shouldn’t mislead the other party by changing their position. LETTER OF RESPONSE (BY D) C2-010 6.1 Letter of Response Annexe B2: template (info to inc in LOR) (LOR) Level of detail varied to suit circumstances; 6.2 After 2ND LOC is posted to the insurer, D MUST reply ≤ 21 CALENDAR DAYS. If insurer knows: key omissions from LOC → identify it. incorrect D identified → notify C w/ reasons ASAP and in any event, ≤ Response period. Failure to respond ≤ 21 days by D/insurer → C may issue proceedings. Compliance w/ this para considered for assessment of D’s costs. 6.3 D (insurer) has ≤ 3 MONTHS from date of acknowledgment of LOC (/CNF/ SCNF) to investigate. By END of 3 MONTHS, D should reply: If liability = admitted; Accident caused by D’s breach of duty; C suffered loss; and No defence under LA 1980. Blue = common exam Qs  6.4 If D/ the accident is outside jurisdiction (not England/Wales), time periods of 21 DAYS and 3 MONTHS → extended: 42 DAYS and 6 MONTHS. 6.5 If D denies liability/causation, provide their version of events + relevant docs in D’s possession and material to the issues. These docs likely ordered for disclosure by court, either pre-action/ during proceedings. NO CHARGE for providing copy of docs under THIS Protocol. 6.6 ADMISSION = MAY be BINDING in litigation. — CPR 14.1A Admissions made before proceedings commenced 6.7 After receiving LOR, if C anticipates delay of 6/ MORE MONTHS before deciding on when and how to proceed, C should keep D generally informed. DISCLOSURE C2-011 7.1 Documents 7.1.1 Early disclosure by D aims to facilitate EARLY exchange of relevant info to help in clarifying/ resolving issues in dispute, not encourage "fishing expeditions" by C. C’s solicitor can help by identifying CATEGORIES of docs considered relevant with a brief explanation why, if necessary in the LOC/ subsequent letter. 7.1.2 Annexe C: specimen, non-exhaustive, lists of docs likely to be material in different types of claim. 7.1.3 Pre-action disclosure = generally, docs required for LOC and LOR. If LIABILITY IS ADMITTED IN FULL, disclosure = docs relevant to quantum. Parties can agree to further disclosure. If either party DISAGREES → apply to court for pre-action disclosure (CPR 31). 7.1.4 D is under a duty to PRESERVE disclosure docs and other evidence (eg. CCTV). If destroyed → could be an abuse of court process. Blue = common exam Qs C2-012 7.2 Experts: EXCL multi-track cases: Protocol promotes JOINT SELECTION of quantum (and Claims EXCLUDING sometimes liability) experts (eg. engineers). whiplash injury Expert Report produced ≠ joint report under CPR 35. Favours C getting a medical report, disclosing to D; D may ask Qs, agree, and NOT obtain their own report. C nominates experts in PI claims. 7.3 Before instructing an expert, Party A→Party B: List of name(s) of expert(s) + in relevant specialty + they consider suitable to instruct. 7.4 Some solicitors use medical agencies for reports; not specific doctors/hospitals. Requires D’s Consent. If D requests, agency must provide names of proposed doctors. 7.5 EXCL whiplash claims, C’s solicitor should give the proposed medical expert access to medical records. (Specimen letter of instruction: Annexe D) 7.6 ≤ 14 DAYS of providing a list of experts, Party A → Party B: Objection to ONE/MORE named experts. Party A → instruct mutually acceptable expert (≠ joint expert). If C nominates an expert in the LOC, D has 21 DAYS to reply and 14 DAYS to object to any experts (as per Para 6.2). 7.7 If D objects ALL LISTED EXPERTS → Parties MAY instruct their OWN experts → Court decide whether either party acted unreasonably. 7.8 If D DOES NOT object an expert nominated by C → Not entitled to rely own expert evidence unless: (a) C agrees (b) Court directs (c) C’s expert report amended, original report not disclosed 7.9 Any Party MAY send →Agreed Expert: Written Qs on report and MUST only be for CLARIFICATION → via 1st party’s solicitors. Qs MUST be put ≤ 28 DAYS of service of the expert's report. Expert should send ANS to Qs ⇆ to each party 7.10 Cost of a report from an agreed expert: /$ Instructing 1st party Blue = common exam Qs  Cost of the expert replying to Qs: /$ Party asking Qs 7.11 After proceedings commence:Further expert reports with court permission Court decides on recoverable costs of multiple expert reports NEGOTIATIONS FOLLOWING AN ADMISSION C2-013 8.1 8.1.1 D admits liability BEFORE proceedings are issued, C should send to that D: (a) any medical reports obtained under THIS Protocol, which C relies; and (b) a schedule of past and future expenses and loss claimed: (i) even if schedule is necessarily provisional, (ii) contain as much detail as reasonably practicable (iii) identify ongoing losses, (iv) state if the schedule is likely to be updated before the case concludes. 8.1.2 C should delay issuing proceedings for 21 DAYS from Disclosure of (a) and (b) ABOVE → enable parties to consider whether claim is capable of settlement. UNLESS, such delay causes claim to be time-barred. 8.2 CPR Part 36: offers to settle (by C/D). Parties: ALWAYS consider Part 36 offers before issuing. Offeror MUST supply evidence/info→ enable proper consideration of offer. Level of detail: Depends on claim value No significant continuing injury: Medical reports may not be necessary Low-value case: Detailed schedule may not be necessary ALTERNATIVE DISPUTE RESOLUTION C2-014 9.1 ADR 9.1.1 Litigation = LAST RESORT. Consider negotiation/ADR to settle dispute. 9.1.2 Options to resolve w/o litigation: (a) Discussions/negotiation (incl Part 36 Offers / apology) (b) Mediation → 3rd-party facilitation (c) Arbitration → 3rd-party decision (d) Early neutral evaluation → 3rd-party opinion 9.1.3 If proceedings are issued: Blue = common exam Qs  Court may ask for ADR consideration. No party can be forced into ADR. Unreasonable refusal of ADR = risk of bearing costs. QUALIFICATION OF LOSS — SPECIAL DAMAGES C2-015 10 10.1 If D admits liability, C must promptly send D: (a) a schedule of past/future expenses/losses, even if provisional: (i) with a much detail as reasonably practicable, (ii) ongoing losses, (iii) likelihood of updates to schedule before case conclusion, (iv) rate of financial loss during the Protocol period. STOCKTAKE C2-016 11 Dispute not resolved by procedure in THIS Protocol, each party should: review its own positions; strengths and weaknesses of its case; TOGETHER consider evidence and arguments; to determine whether litigation can be avoided. If not possible → narrow issues before proceedings are issued. Where D is insured and pre-action steps taken by insurer: insurer expected to nominate solicitors: ○ act in proceedings; and ○ accept service of CF and other docs for D. C/solicitor to invite insurer to nominate solicitors: 7-14 DAYS before issue date. Examinable material | Pre-Action Protocol for Personal Injury Claims general aim of the protocol; letter of notification; letter of claim; the response; disclosure; negotiations following an admission; alternative dispute resolution; quantification of loss; and stocktake. The relevant material is addressed in paragraphs 1.1, 1.4-1.7, 2.1, -3.1-3.3, 5.1-7.11, 8.1-8.2, 9.1 and 10-11 of the Pre-Action Protocol for Personal Injury Claims THE PI PROTOCOL para C2A-001 THIS Protocol: Fast track cases ≤ £25,000. Scope and Content However, General approach still followed → Larger claims, EXCEPT: Occupational disease/ Clinical negligence REQUIRES parties to co-operate on selection of an expert, esp medical expert → Blue = common exam Qs  condition and prognosis report on V. If D objects ALL experts named by C/ unsatisfied with report disclosed by C after raising Qs → D retain own expert → Court will decide at ALLOCATION STAGE: whether the cost of 2 experts is justified. THIS Protocol inc: Specimen letter of instruction to medical expert Annex B: Non-exhaustive lists of docs (D should disclose with ANY denial of liability) in particular types of case para C2A-002 THIS Protocol ∞ reviewed: Changes since 2010: Protocol for low-value PI claims: implemented for RTA after 30 implementation April 2010 + admitted liability + damages < £25,000. 2012: Protocol for low-value employer’s liability and public liability claims. 31 May 2021: RTA Small Claims Protocol for PI claims from accidents after that date. ○ Important change: damages for PI ≤ £5,000 → small claims track. ○ More prescriptive than general PI Protocol and inc fixed costs When claims exit from those protocols→Proceed under THIS protocol. WHEN a claim drops out of new protocol (eg. cause D does not admit liability/ outside 15 DAY period) → PI protocol and Pt 7 if proceedings need to be issued. para C2A-003 Disclosure of an expert's report Other points of THIS Protocol: NO instructions on handling report(s) submitted by C that C DO difficulty NOT DISCLOSE because it is unsatisfactory / unhelpful. — Carlson v Townsend EWCA Civ 511 Where expert's identity NOT revealed, PI protocol DOES NOT require medical expert to be: selected in accordance with the protocol, jointly instructed; or report to be disclosed to D. Such Reports remain privileged, the court cannot order their production. GR: C need court's permission to rely an expert's report in proceedings → C bears cost of undisclosed report — Gunn & Lloyd Wilson v Taygroup Lid (2010] EWHC 1665 (TCC) Claim: Damage £637,000 → D’s lorry bringing down telephone and data cables Pre-action: D’s solicitor admits liability after loss adjuster refused to do so On issue, claim increased to £3.4m → D’s new solicitor withdraws admission C's application to strike out part of the defence → refused: Blue = common exam Qs  no bad faith by D/ prejudice to C; and if D had known, pre-action, claim: over £3m → may not admit liability so readily if there was an arguable defence on the facts. commentary on the Pre-Action Protocol for Personal Injury Claims at paragraphs C2A-001 to C2A-003 of Volume 1 of 'Civil Procedure' (the White Book) Blue = common exam Qs CONSEQUENCES OF NON-COMPLIANCE — PRE-ACTION CONDUCT AND PROTOCOLS COMPLIANCE WITH THE PD C1-008 13. The court will consider NON-compliance in: (para 13-16) CASE MANAGEMENT DIRECTIONS (CPR 3.1(4)); and in Compliance with ORDERS RE COSTS (CPR 44.3(5)(a)). PAP/ PD NOT concerned with MINOR / TECHNICAL infringements, especially where a matter is URGENT (e.g. application for an injunction). 14. Court may find NON-COMPLIANCE where a party has – (a) Not provided SUFFICIENT INFORMATION to meet objectives (para 3); (b) Not acted within a RELEVANT TIME LIMITS/REASONABLE PERIOD; (c) Unreasonably REFUSED to use ADR / failed to respond to an invitation. 15. Non-compliance with a specific PD/PAP, court may order – (a) Parties are RELIEVED of obligation to comply further with protocol/PD; (b) Proceedings STAYED while steps are taken to comply with PAP/PD; (c) SANCTIONS be applied. 16. Court will consider EFFECT of NON-compliance when imposing sanctions. Sanctions inc: (a) Order party that failed to comply → pay all / part of costs; (b) Order of costs on an indemnity basis; (c) Order (where C at fault), deprive C of interest on the sum (for specified period) or applying a lower rate of interest; (d) Order (where D at fault) awarding C a higher rate of interest on sum (not higher than 10% above base rate = 0.5%). COURT’S ROLE IN COMPLIANCE WITH PD C2-001 1.4 Pre-action Protocol SEE ABOVE for PI claims: Introduction 1.5 Failure to comply with Protocol may lead to court sanctions. Court considers: parties' compliance in substance (with principles/ requirement); effect of NON-COMPLIANCE on other party. NOT CONCERNED WITH minor/technical shortcomings (paras 13-15 of PD on Pre-Action Conduct and Protocols). comm. C1A-006 Directions Questionnaire Pre-action Conduct Where parties state: and Protocols compliance with relevant protocol; NOT non-compliance by other party; nor ANY request for the court to impose sanctions. Blue = common exam Qs The Court SHOULD treat Protocols = reasonable approach to pre-action conduct for that type of dispute and are able to impose sanctions for breaches. — CPR r.3.1 “(4) Where the court gives directions (case management/ costs orders) → will account compliance of PD + protocols. (5) Court MAY order a party to pay a sum of $ into court IF party failed to comply with a rule/PD/PAP, W/O GOOD REASONS.” — CPR r44.2(5) When making costs orders, COURT to account: Parties’ conduct before, during proceedings; Particularly, extend parties followed PD (pre-action conduct) and PAP. Court orders for NON-COMPLIANCE: SEE ABOVE (C1-008, para 16) Party at fault → Costs payment for proceedings to date; Party at fault → Costs on indemnity basis; Where C at fault, deprive C of interest on the sum (for specified period) or applying a lower rate of interest; Where: C issued prematurely → give D a time extension to serve defence; D fails to reply adequately/ in time to letter of claim, BUT D has good defence AND C discontinues proceedings after defence served → Court orders D to pay some/ all C’s costs — Wealands v Harding EWHC 889 (QB) C’s failure to comply with PI protocol: not allowing Australian D 6 months to investigate + issuing within a short time the intention to sue in English courts = MORE SERIOUS than D’s 4-week delay in challenging jurisdiction (under Pt 11) — Spink v Shepherd Construction Ltd 10 WLUK 243 2nd D failed to comply with protocol for disease and illness at work claims: not replying to letters on C’s contraction of mesothelioma (from exposure to asbestos when employed by 2nd D) C obtains default judgment → C passes away → 2nd D applies to set aside default judgment → Master refused app: Delay in producing defence greatly prejudiced C; and not satisfied 2nd D had a real prospect of success. Cases on non-compliance with Construction & Engineering (C&E) Protocol — Daejan Investments Ltd v Park West Club Ltd EWHC 2872 (TCC) Dispute about defective waterproofing Blue = common exam Qs  C issues proceedings without proper investigation/ expert advice → Nature of claim changes several times → C ordered to pay ALL costs of pt 20 (amendment to SOC) to date for NON-COMPLIANCE with protocol — Cundall Johnson and Partners v Whipps Cross University Hospital NHS Trust EWHC 2178 (TCC) C fails to comply C&E Protocol: basis of claim was obscure until proceedings. Court ordered stay of proceedings: Stay was in interest of both parties → there was a REAL possibility of settlement through protocol process. — Orange PCS v Hoare Lea EWHC 223 (TCC) C declined stay for compliance: 1. Court should consider non-compliance in a pragmatically and commercially realistic way; 2. Court should avoid slavish application of rules if it undermines OO; 3. Protocol process not sufficiently productive at this stage to justify stay. — TJ Brent Ltd v Black and Veatch Consulting Ltd EWHC 1497 (TCC) C’s app. for costs (for D’s alleged non-compliance) dismissed → D did comply. + other cases. comm. C2A-005 — Chapman v Tameside Hospital NHS Foundation Trust, 15 June 2016, unrep., Sanctions for not Bolton County Court complying with PI Case: slipping accident at A&E department protocol NHS Trust claims no docs to disclose → Claim issued → Trust disclosed 2 sets of docs → C discontinued. Held: Trust was in breach of PI protocol paras 6.5 and 7 If Trust disclosed docs pre-action → claim likely not issued; Trust ordered to pay costs under CPR r.44.2 → Costs as if trial occurred minus post-disclosure costs. INSUFFICIENT RESPONSE TO A PROPOSAL TO USE ADR — para 8.23 (Jackson ADR Handbook, 3rd ed, 2021) para 8.23 Insufficient response → Risk of sanction / adverse costs order if proceedings issued; Court MAY ask parties what steps were taken to comply with PD Pre-action Conduct and Protocols; MAY ask a party to explain any failure to comply with evidence. Blue = common exam Qs POTENTIAL JUSTIFICATIONS FOR NON-COMPLIANCE WITH PRE-ACTION REQUIREMENTS — para 8.24-8.25 (Jackson ADR Handbook, 3rd ed, 2021) para 8.24 Circumstances non-compliance with pre-action requirements may be justified: Circumstances If relevant period to expire → may be necessary to issue proceedings to NON-COMPLIANCE meet statutory time limit → parties should request stay of proceedings may be justified while they comply; A need to take action urgently (eg. freezing injunctions). REGARDLESS, pre-action requirements should be met as reasonably possible within available time The court MAY BE slow to accept non-compliance if not clearly justified, esp if it hinders settlement or raises costs. para 8.25 Other party’s non-compliance DOES NOT excuse own non-compliance. Appropriate course of action: 1. raise the non-compliance specifically; 2. so it can be addressed, if possible; and 3. keep evidence of the other party’s non-compliance. FAILURE TO COMPLY WITH PRE-ACTION PROTOCOLS — para 11.05-11.06 (Jackson ADR Handbook, 3rd ed, 2021) para 11.05 SEE ABOVE (C1-008, para 13-16) Court accounts parties’ compliance with PD/PAP → case management and costs orders. Non-compliance: ○ unreasonable refusal to use ADR; ○ no response to invitation. Court can ask parties to provide evidence of ADR consideration. Sanctions: (C1-008, para 15-16) para 11.06 Parties expected to comply with PAP and PD Non-compliance with pre-action conduct → adverse cost order (eg. indemnity) Failure to comply could = Contempt of court / abuse of process If C’s conduct = abuse of process → Court SHOULD conduct a balancing exercise to determine whether to strike out claim PAP = vital in litigation Serving a dishonest WS MAY interfere with due administration of justice = potential contempt of court. Blue = common exam Qs SILENCE IN THE FACE OF AN INVITATION TO USE ADR — para 11.60 (Jackson ADR Handbook, 3rd ed, 2021) para 11.60 PD Pre-Action Conduct and Protocols (revised with effect from 6 April 2015): Silence / refusal to ADR may= unreasonable; Court may order the party to pay additional costs. para 11.03 Court also has power to STRIKE OUT A CASE if C can obtain full redress via ADR. Continuing litigation due to potential costs advantage ≠ reasonable/ proportionate use of the court’s resources. Examinable material on consequences of non-compliance will consist of compliance with the Practice Direction - Pre-Action Conduct and Protocols and the Protocols; the court’s role in compliance with the Practice Direction - Pre-Action Conduct and Protocols and protocols; insufficient response to a proposal to use ADR; potential justifications for non-compliance with pre-action requirements; failure to comply with pre-action protocols; and silence in the face of an invitation to use ADR. The relevant material is addressed in paragraphs 13-16 of the Practice Direction - Pre-Action Conduct and Protocols at paragraph C1-008 of Volume 1 of 'Civil Procedure' (the White Book) 2023; paragraphs 1.4 and 1.5 of the Pre-Action Protocol for Personal Injury Claims at paragraph C2-001 of Volume 1 of 'Civil Procedure' (the White Book) 2023; the commentary on the Practice Direction - Pre-Action Conduct and Protocols at paragraph C1A-006 of Volume 1 of 'Civil Procedure' (the White Book) 2023; the commentary on the Pre-Action Protocol for Personal Injury Claims at paragraph C2A-005 of Volume 1 of 'Civil Procedure' (the White Book) 2023; and paragraphs 8.23-8.25, 11.05-11.06 and 11.60 of The Jackson ADR Handbook (Third Edition, 2021). Blue = common exam Qs ADR PRIOR TO THE ISSUE OF PROCEEDINGS SETTLEMENT AND ADR C1-006 (para 8-11) Litigation = LAST RESORT. Parties should consider ADR to settle dispute. ADR Parties should ∞ consider settlement, even post-proceedings. Part 36 offers may be made before / during proceedings. If proceedings are issued, court may demand evidence of ADR consideration. Silence / refusal to participate in ADR = unreasonable, may incur extra costs. ADR UNDER PAP FOR PI CLAIMS C2-014 SEE ABOVE. ADR WHERE NO PROCEEDINGS HAVE BEEN ISSUED — para 8.03 (Jackson ADR Handbook, 3rd ed, 2021) para 8.03 PD:Pre-action Conduct and Protocols (from 6 April 2015) → increased ADR focus This aims to help parties understand each other’s position and settle without proceedings; There should be a final review before issuing proceedings → avoid litigation / narrow issues; ADR not compulsory, specific options available with sources to further info. Examinable material on ADR prior to the issue of proceedings will consist of settlement and ADR; alternative dispute resolution under the Pre-Action Protocol for Personal Injury Claims; ADR where no proceedings have been issued. The relevant material is addressed in paragraphs 8-11 of the Practice Direction - Pre-Action Conduct and Protocols at paragraph C1-006 of Volume 1 of 'Civil Procedure' (the White Book) 2023; paragraph 9 of the Pre-Action Protocol for Personal Injury Claims at paragraph C2-014 of Volume 1 of 'Civil Procedure' (the White Book) 2023; and paragraph 8.03 of The Jackson ADR Handbook (Third Edition, 2021). Explanatory material which will NOT be assessed: commentary on the Practice Direction - Pre-Action Conduct and Protocols at paragraphs C1A-001, C1A-002 and C1A-004 of Volume 1 of 'Civil Procedure' (the White Book) 2023; and paragraphs 8.01-8.02; and 11.01-11.03 of The Jackson ADR Handbook (Third Edition, 2021) Blue = common exam Qs 4 | ADR: ADJUDICATIVE OPTIONS ARBITRATION — CPR 62 / s.2E (WB Vol 2) / s. 25 (Jackson ADR Handbook, 3rd ed, 2021) para 25.01 Impartial arbitrator/tribunal: Evaluates both sides → Decides award. (Jackson ADR) Arbitration agreement: outlines resolution through arbitration, ​made before/after dispute. Arbitration clause: SEPARATE from contract (applies if contract is void). para 25.02 Types of provisions Mandatory Essential for arbitration to work. in AA 1996 provisions Non-mandatory Everything else, parties can customise. Often replaced provisions with rules from a named arbitration institution. FUNDAMENTAL CONCEPTS IN ARBITRATION para 25.03 Three Principles — s1. AA 1996 (Jackson ADR) (a) Fair resolution by impartial tribunal, w/o unnecessary delay/expense. Governed by (b) Parties free to agree on dispute resolution, subject to necessary Arbitration Act 1996 safeguards for public interest; and (c) Court should NOT intervene, unless allowed by AA 1996. para 25.04 If parties AGREE to arbitration = they want their dispute decided: Expectations of by a chosen tribunal; parties in a neutral location w/ neutral arbitrators; in privacy; speedily + efficiently; and w/ minimal but effective court supervision. ARBITRATION REQUIREMENTS para 25.05 Dispute/difference, which is; Requirements to ○ ‘arbitrable’ (private law, not public law/legal status); refer a dispute to ○ within arbitration agreement terms; arbitration Agreement to arbitrate; ○ For AA 1996 to apply, agreement = in writing; ○ Parties have legal capacity to enter into arbitration agreement; ○ Any condition precedent to arbitration is met; Arbitral tribunal willing to act; Dispute within terms of reference to arbitration. Blue = common exam Qs para 25.06 Arbitration typically resolves contract disputes, through an arbitration clause in Contractual the substantive contract. foundation of arbitration Typically, 4 contracts arise: Substantive contract Basis of the dispute. Arbitration agreement Separate agreement to arbitrate. Procedural Between parties & arbitral institution; often includes agreement agreement on institution’s arbitration rules. Appointment of Between parties/arbitral institutions + arbitrators, arbitrators implying fair & impartial conduct by arbitrators. para 25.07 Limited by: Mandate of arbitral Arbitration agreement (standard clause in contract / agreement after tribunal dispute arises). Separate agreement appointing the tribunal. NO jurisdiction unless the dispute Arbitrators CANNOT decide against: aligns with the arbitration terms. Non-parties of arbitration agreement, Matters outside the arbitration agreement, or Beyond the parties' agreement with the arbitrators. COMMENCEMENT para 25.10 Send a Notice of Arbitration (simple written letter); Procedure to start Include details to comply w/ institutional arbitral rules; arbitration Appoint tribunal members. para 25.11 Parties may agree on procedure to appoint arbitrators, incl. chairman/umpire. Appointment of Arbitrators Arbitrators chosen by: Professional acquaintance Recommendation Nominated by Arbitral institution Nominated by President of a professional body Before + during arbitration, each arbitrator must: Disclose potential conflicts of interest; Allow time for party objections. For a 3-member tribunal: Each party appoints 1 arbitrator; The 2 appointed arbitrators select a 3rd as chairman. Blue = common exam Qs PROCEDURE IN ARBITRATIONS para 25.12 Varies by parties' agreement + dispute nature/importance. Complexity of arbitration Consumer arbitrations simple procedure; procedure Commercial arbitrations similar to commercial litigation. Arbitral institutions' rules dictate process stages. If no agreement, AA 1996 default provisions apply. para 25.13 Parties + arbitrators meet to discuss jurisdiction + set procedural directions for Preliminary evidence. meeting (after tribunal No fixed agenda; directions can be agreed upon, making meetings optional. Held appointment) via conference/video calls. para 25.14 Arbitration tribunal decides procedural + evidential matters, unless parties agree Directions: themselves. procedure + evidence Procedural matters MAY incl: Timing/location of proceedings Languages + need for translations Use + form of written points of claim/defence Disclosure + timing Application of strict evidence rules Need for expert evidence + exchange/presentation details Tribunal's role in determining facts/law Extent of oral/written evidence/submissions Deadlines + extensions. para 25.15 Court may assist w/ witness attendance + evidence collection. para 25.16 For complex arbitration, a pre-trial hearing/conference may occur weeks before Pre-trial hearing/ the hearing to review preparation, assess readiness, and issue directions. conference para 25.17 Directions are usually made for: Bundles Hearing bundles Reference documents + tribunal appointment Statements of case, procedural orders/directions Separate bundles Contemporaneous documents for evidence Witness statements Expert evidence Additional files Written opening submissions; or Skeleton arguments + authorities Blue = common exam Qs para 25.18 Unless parties agree otherwise, the Tribunal can decide: No right to an oral need + extent of oral/written evidence/submissions; hearing based on fairness: give each party an opportunity to present cases + avoid expense/delay. Though risky in high-stakes arbitration, arbitrators can proceed w/o hearing. Some institutional rules reverse this, allowing parties to insist on an oral hearing. para 25.19 Arbitrators can choose the following approach to the hearing: The hearing adversarial traditional English court. inquisitorial civil law system. para 25.20 Arbitrators will set a mechanism for closing proceedings, which may be: Closing of A specific date in tribunal directions proceedings A set period after a stage in the process, or After the final submission at the hearing. After closure, no further evidence/submissions allowed, unless tribunal permits. PRIVACY AND CONFIDENTIALITY para 25.21 Arbitral proceedings = PRIVATE AND CONFIDENTIAL. See Ch.5 for more ARBITRATION AWARDS para 25.22 4 types of awards/order Types of awards/order Procedural procedural directions/conservatory measures during order arbitration. Interim/ Resolves some substantive issues; others decided later. partial award Final award Resolves the arbitration completely. Cost award Determines payment of arbitration costs between parties. para 25.23 Orders/awards = binding on parties. Most institutional rules allow parties to Once made = request corrections for clerical errors. BINDING Blue = common exam Qs ENFORCEMENT OF AWARDS OF AN ARBITRAL TRIBUNAL para 25.24 MAY be enforced by: DOMESTIC Ordinary civil claim in HC / arbitral award Summary procedure (s.66(1) AA 1996). ○ Court may grant permission to enforce an arbitral award as a judgment/order. ○ Permission sought by issuing arbitration CF in HC + considered w/o notice. para 25.25 USUALLY enforced through New York Convention 1958. CROSS-BORDER Applies to awards made in one state, enforced in another. arbitral award Award is treated as made at the arbitration seat, regardless of where it was signed, sent, or delivered. To enforce, a party must produce: 1. Authenticated original award/certified copy; and 2. Original arbitration agreement/certified copy. If permission granted, judgment may be entered for the award. APPEALS para 25.26 Limited court intervention in arbitration → restricted grounds for judicial review Limited court of arbitral awards. intervention s.68: Challenge award for serious irregularity, narrowly applied. s.69: Appeal on point of law, narrow unless parties agree to exclude. Court appeals in arbitration claims = highly restricted. ARBITRATION CLAIM CPR 62.2 / 2E-8 (1) “Arbitration claim” = Interpretation (a) Any application to the court under the 1996 Act; (b) A claim to determine — (i) Validity of an arbitration agreement; (ii) Proper constitution of an arbitration tribunal; (iii) Matters submitted to arbitration per the agreement. (c) A claim to declare an arbitral award = non-binding; (d) Any other application affecting— (i) Arbitration proceedings (started or not); (ii) An arbitration agreement. (2) This Section EXCLUDES arbitration claims covered by S. II/III. Blue = common exam Qs STARTING THE ARBITRATION CLAIM CPR 62.3 / 2E-9 (1) An arbitration claim (unless para (2) applies) must be started via an Starting the claim arbitration claim form as per Part 8 procedure. (2) A s.9 application to stay legal proceedings must be made by application notice to the court handling those proceedings. (3) PD 62 specifies the courts where an arbitration claim can be started. (4) r.30.5 applies with modification: a judge of Technology + Construction Court may transfer the claim to any other court/specialist list. 2E-10 THIS rule = supplemented by PD—Arbitration para 2 (s.2E-46). ARBITRATION CLAIM FORM CPR 62.4 / 2E-11 (1) An arbitration CF MUST— Content of (a) give a concise statement of remedy claimed + Qs for court's decision. Arbitration CF (b) identify the challenged part(s) of the arbitration award + grounds. (c) show statutory requirements are met; (d) Specify the section of the 1996 Act under which the claim is made. (e) Identify any D against which a cost order is sought. (f) specify either— (i) the CF recipient's role in arbitration + whether they are Ds, or (ii) the claim is made w/o notice under s.44(3) AA 1996 + grounds. Service of CF (2) Unless court orders otherwise, an arbitration CF MUST be served on D, ≤ 1 MONTH from date of issue (CPR 7.5 + 7.6 modified accordingly). Time extension (3) If C applies under s.12 AA 1996 (time extension for starting arbitration/ADR), the CF may include an alternative application for a declaration that the extension is unnecessary. Blue = common exam Qs STAY OF LEGAL PROCEEDINGS (s9 Arbitration Act 1996) para 25.08 A party to an Arbitration Agreement can apply to court to stay legal proceedings (Jackson ADR) / if initiated on the same matter. comm. 2E-16.1 This stay (s.9(1) AA 1996) = halt proceedings + refer dispute back to arbitration. Scope of Stay A stay can be sought for: claims, counterclaims, unfair prejudice petitions (s.996 Applications Companies Act 2006), and Part 7 claims. para 25.09 Is the dispute “to be referred to arbitration” per the agreement? Test If YES → court "shall" grant a stay (mandatory), unless the arbitration agreement is null, void, inoperative, or incapable of performance. CPR 62.8 / 2E-16 (1) An application notice for a stay of legal proceedings (s.9 AA 1996) must be Application Notice served on all parties with an address for service. (2) A copy must be served on party w/o an address for service (in/out E&W), (a) at their last known address; or (b) where it’s likely to come to their attention. (3) If there’s a Q about whether— (a) an arbitration agreement exists; or (b) covers the dispute, court may decide the issue, give directions/order a stay pending its decision. comm. 2E-107 “A party” = anyone claiming under/through a party to the agreement (para 1-3) (s.82(2) AA 1996). “A party to an Non-parties to the agreement → s.9 CANNOT apply. arbitration Legal/commercial ties between stay applicant and claimant ≠ sufficient. agreement” A third party, not originally part of the arbitration agreement, may still seek a stay of legal proceedings if they intend to rely on a contractual Civil Lit: Addi… defence that requires disputes to be resolved through arbitration. Different provisions can give rise to different jurisdiction (court / arbitration): this is a matter of construction. comm. 2E-111 The application must be made after acknowledging the legal proceedings but (first 2 sub-para) before responding to the claim. “… or after he has taken any step in — Adams v Cattley 66 LT 687 those proceedings to answer the Security for costs application = "step in proceedings" to answer the substantive substantive claim” claim under s.9(3) → bars D from obtaining a stay of proceedings. The same effect applies to: An application for disclosure; Attending case management conference; Blue = common exam Qs  An application for directions (issued by C); Agreeing to/ obtaining an order; After defence is filed; After D obtained time to plead & agreed to take short notice of trial; It depends on whether taking that step = an election (making a choice). — Fairpark Estates Ltd v Heals Property Developments Ltd EWHC 496 Eg. Decision to request a second extension AFTER considering possibility of arbitration = "a step in proceedings"; party chosen to give up contractual right to seek arbitration. D must act promptly / within the required timeframe. Initiating a stay app for arbitration ≠ "step" in proceedings (s.9(3) of 1996 Act) if the party either simultaneously or subsequently invokes/accepts court's jurisdiction conditionally upon failure of their stay app. — Ford’s Hotel Co Ltd v Bartlett A.C. 1, HL D applied for an extension of time for defence, but did not issue a stay app until after the application has been decided = a step in proceedings. — London Sack & Bag Co Ltd v Dixon & Lugton Ltd 2 All E.R. 763, CA D files stay application + seeks an extension to file defence until after hearing of the stay app. ≠ a step in proceedings. comm. 2E-112 Burden = C; show dispute SHOULD NOT be resolved by arbitration. (first sub-para) Standard of proof = balance of probabilities. Burden: show the claim should 2 jurisdictional thresholds proceed This must be determined by the court before granting a stay: 1. whether there is a valid arbitration agreement; and 2. whether the issue in the proceedings falls within the scope of the arbitration agreement. As part of 2nd Q, the court will assess if the original arbitration agreement has been replaced/ nullified by a subsequent contractual arrangement agreed upon by the parties, indicating a shift away from arbitration for resolving the dispute. Blue = common exam Qs EXPERT (OR NEUTRAL) DETERMINATION — para 24.01 Expert (or a neutral) appointed → Determine issues referred by appointing (Jackson ADR) parties. Determinative process, NOT facilitative (mediation) or advisory evaluative (early neutral evaluation): Commonly employed in technical cases. Determination by appropriate expert (e.g., accountant, surveyor, engineer). Not always necessary to appoint an expert → Parties can: agree on independent 3rd party/ panel of neutral 3rd parties for determination. para 24.02 BEFORE dispute arise, parties MAY contractually bind themselves to: Use expert determination to resolve dispute about: ○ 1/more specified issues; or ○ ALL issues arising out the contract between them. OR AFTER dispute arose: Parties may select expert determination = most appropriate ADR. Can occur < or > issue of proceedings. para 24.03 The terms of the contract (of expert appointment) primarily govern: Relationship between the parties and the expert; Obligations of the expert; Circumstances where decision will be final & binding on the parties. para 24.04 GR: Where parties use expert determination, they usually agree: Determination = FINAL and BINDING; Which is recorded in contract. ‘FINAL’ — Decision CANNOT be reviewed/ appealed. ‘BINDING’ — Parties MUST comply with determination. If not expressly stated → Court may imply term. Parties may also agree (less common): Determination = ONLY binding temporarily/ interim period. para 24.05 Expert determination ≠ subject to court supervision (unlike arbitration). Blue = common exam Qs  However, court MAY be involved if: Dispute arises on expert's jurisdiction. One/ both parties challenge determination. Enforcement needed due to non-compliance. para 24.06 If determination is final and binding: contract may allow exceptional circumstances (e.g., manifest error) → determination can be challenged. + Other grounds for challenge may exist, even if not specified in contract. para 24.07 Expert determination ≠ expert evidence (CPR 35). In expert determination: In court proceedings: Expert: Expert: Decision-maker. Witness, judge = Appointed under mediation decision-maker. settlement agreement reached. Court-appointed under CPR 35. Court not entitled to examine expert's approach under CPR Part 35/ 40. para 24.08 Expert determination differs from arbitration: (not in syllabus) Little court review/intervention. No award/judgment. No right of appeal. Natural justice/evidence rules don't apply unless contract states otherwise. Expert lacks immunity from suit unless contract grants. Expert doesn't act judicially, can use own expertise for decision. CASES SUITABLE FOR EXPERT DETERMINATION para 24.09 Various commercial cases: rent reviews, valuations (company, asset, share), construction, real property, land, energy. Disputes during cost assessment after main proceedings conclude. Factors for selection: cost-effectiveness, speed, conclusiveness, informality, control over expert selection. Blue = common exam Qs CONTRACTUAL NATURE OF EXPERT DETERMINATION para 24.10 Underlying contract: Parties agree in advance to use ED to resolve specified/dispute arising out of the contract; Separate contract: Formed between parties and expert when matter referred for determination. If disputes arise, court may construe contract: Clear and unambiguous → enforce it. In construing contract terms, court will identify: ○ parties' intention by ○ what a reasonable person with shared background knowledge ○ would understand from the agreement's language. Words of contract MUST be interpreted in: ○ context of entire agreement; and ○ admissible wider context. PROCEDURE para 24.15 Each party sends expert: Written submissions: set out case on each issue. Copies of all relevant documents (agreed bundle if possible). In some cases, parties may agree for submissions at a meeting/hearing, with optional attendance and XX of witnesses. Parties may also agree for expert to conduct own lines of inquiry. NATURE OF THE DECISION para 24.19 Parties usually agree: decision = BINDING → Court upholds it, UNLESS grounds to set aside. Decision ≠ award or order (unlike arbitration). IGNORING AN EXPERT DETERMINATION CLAUSE para 24.24 Expert determination clauses, if clear and unambiguous: Breach of contract → upheld by courts. → generally prevent any recourse to courts to resolve disputes. Blue = common exam Qs  If one party breaches such a clause → the other may seek damages for breach of contract. If parties agree in contract to refer disputes for expert determination: → Court will refuse pre-action disclosure application. Pre-action Court: pre-action disclosure application = impeding expert determination disclosure = process: interfere with ADR Interferes with and undermines appointed expert; Likely affects contractually agreed timetable. Whether inference was intentional/side effect of order sought — IMMATERIAL. Which docs were necessary/ desirable for expert determination: → Matter for expert, not court. para 24.25 If a party fails to use contractually agreed ADR (eg. issue court proceedings) → Applications to Court has DISCRETION TO STAY. STAY COURT Burden: C, grounds: why claim should not be stayed. PROCEEDINGS pending expert Factors considered in exercising discretion: determination Contractual obligation for expert determination. Compliance with pre-action protocol. Suitability of dispute for agreed ADR. Costs comparison: ADR vs. litigation. Speed of resolution: ADR vs. court. Stay would accord w/ overriding objective Possibility of parallel litigation increasing costs and time, contrary to interests of justice. Public policy in upholding commercial agreements. Furthering OO of resolving disputes. Strong public policy → enforce ADR & resolve disputes without litigation. GROUNDS FOR CHALLENGING THE DECISION para 24.31 Court → primary consideration to: terms of contract, whether determination can be challenged. If parties agree ADR = expert determination + expert’s decision = conclusive and binding for ALL purposes → Expert’s report (whether/not contained reason for decision), having followed instructions, CANNOT usually be challenged in court. However, 1/more grounds for challenge may exist: Blue = common exam Qs  Contractual grounds for challenge Failing to provide reasons when contract requires. Manifest error. Error of law. Lack of procedural fairness. Determination = NOT final and binding on construction matters. In absence of contractual grounds: Grounds of challenge as a matter of law Material departure from instructions; Fraud; Partiality. PROCEDURE FOR MAKING A CHALLENGE para 24.53 To challenge decision in expert determination → issue Part 8 proceedings. Part 8 may also be issued BEFORE expert determination to: Decide on interpretation of the expert determination clause. Resolve disagreement about matters that should be referred to an expert. If decision set aside, court may: Make determination itself after considering expert evidence. Direct new expert to be instructed to determine matter. ENFORCING A DECISION para 24.54 Decision by expert/neutral determination ≠ enforced like court decision. Failure by one party to honour a decision = breach of contract → proceedings can be issued. Court can make an order enforcing expert decision, in absence of valid grounds for challenge → summary judgment. Court decision = enforceable like any other judgment. Winding-up/ bankruptcy proceedings possible against non-paying party. paras 24.01-24.07, 24.09-24.10, 24.15, 24.19, 24.24-24.25, 24.31, and 24.53-24.54 of The Jackson ADR Handbook (Third Edition, 2021). Blue = common exam Qs 5 | ADR: NON-ADJUDICATIVE OPTIONS 5.1 | EARLY NEUTRAL EVALUATION — para 22: 22.01-.07, 22.10-.13 and 22.15 (Jackson ADR Handbook, 3rd ed, 2021) para 22.01 Private assessment of facts, evidence, or legal merits; Early Neutral One/ more issues in the case/ case as a whole; Evaluation (ENE): Undertaken on behalf of both parties; Can be requested by one party for their own case; Without prejudice and non-binding. Evaluation given after the evaluator considered: ○ materials provided by parties; and ○ submission made by/ on behalf of parties. Most effective at an early stage in dispute. 22.02 ENE vs. Mediation ENE Mediation Advisory and evaluative process. Facilitative process. ENE ≠ Evaluative Mediation. ENE = neutral 3rd party evaluates dispute, without involvement in negotiations. Disengagement from the negotiation process → ENE ≠ Evaluative Mediation. 22.03 ENE can take place: Venue of ENE 1. within the court system: Eval. by judge 2. Outside litigation process: but parallel with it, even before litigation commenced. 22.04 ENE, like Mediation: ENE, like Mediation Private & confidential process, Evaluator MUST = impartial. If evaluator appointed using ADR provider → follows code of conduct similar to mediator's. WHAT STAGE TO EMPLOY ENE? 22.05 ENE: Typically used early, but viable at any stage. ENE used early → assists settlement by mediation, can occur before/during mediation/litigation. ENE also used → settle disputes during cost assessment after main proceedings conclude. Costs ADR Service (CADR) offers ENE/ non-binding paper assessment. Blue = common exam Qs WHEN SHOULD ENE BE USED? 22.06 Rationale for ENE: Unbiased evaluation of 1/more issues and/or likely outcome; By a neutral party (e.g., judge/expert) → aids settlement by negotiation/mediation. Use of ENE, where: a party taken an unrealistic/entrenched view; issues depend more on analysing/ applying law, technical/ specialist processes, or evidence to a given set of facts, rather than opposing factual evidence. 22.07 Benefits of ENE Enables each party to appreciate case strengths/weaknesses. Encourages settlement, even if not based on evaluation. ENE PROCEDURE 22.10 Evaluation method → decided by evaluator (after consulting parties). Flexible process; tailored to case needs. Parties control amount/ form of info & issues (fact/law) for evaluation. Evaluator usually instructed by both parties (sometimes, by one: para 22.01, bullet point 4). ○ → both parties agree: terms & scope. Evaluator may: ○ Conduct independent investigations → make recommendations. ○ Hold a preliminary meeting → agree on ground rules, documentation, need for hearing, time limits. 22.11 Each instructing party to make: Duties of Written submissions to evaluator. instructing party With evidence & supporting documents as they see fit. Possible to agree: each party presents some/all of case at oral hearing. Evaluator may hold a meeting for additional info (instead of/in addition to formal hearing). 22.12 Evaluator: Role of Evaluator Evaluates evidence (oral &/written) & law. Consider each party's submissions. Produces recommendation on dispute's merits & likely outcome. Recommendation: May/may not include detailed reasons (depends on party-evaluator agreement). 22.13 Evaluation = Non-binding → Parties: Not obligated to accept Evaluation Can agree to settle dispute per recommendations Blue = common exam Qs JUDICIAL EVALUATION (JUDICIAL ENE) 22.15 ENE can be carried out → judge in any court Definition Aim: help parties settle Evaluates legal/factual issues, evidence, submissions Issues non-binding recommendation/evaluation If parties request, judge may express provisional view on whole case/issues → part of judicial function Court can order ENE CPR r 3.1(2)(m), even without 1 party consent Limiting court's ENE power to require party consent → contrary to overriding objective ENE hearing → part of court process, does not obstruct court access Purpose of Judicial Judicial ENE → indicates likely outcome at trial. ENE Have strong persuasive effect on parties → who may adopt judge’s recommendations in settlement. Provides court's view on quantum Particularly useful: Limited factual disputes Significant difference in opinions on $ of claim Differing perceptions of claim strength or specific issues Blue = common exam Qs 5.2 | CONCILIATION AND MEDIATION — para 2.27, 23.03, 13.08-13.17, 13.24-13.27, 13.32-13.42, 13.47-13.62, 14.49, 14.61, 14.73-14.74, and 15.04-15.05 (inc. Figure 15.1) (Jackson ADR Handbook, 3rd ed, 2021) CONCILIATION para 2.27 "Conciliation" → no single agreed meaning Definition Normally involves: Neutral 3rd party Conciliator might: Facilitate negotiation Propose a decision (non-binding) If no final result → another process may follow Various bodies offer conciliation services: Best known: ACAS Key Steps 1. Important: Clarify conciliation form before agreeing 2. Assess potential advantages/drawbacks Further details: Chapter 23 para 23.03 Conciliation vs. mediation: Conciliation vs. Almost identical. mediation Non-adjudicative, facilitative, confidential, without prejudice. (see Ch. 13-17) Possible Outcomes Successful → compromise agreement (may cover broader issues). Unsuccessful → revert to courts/tribunals. Key differences: Most important conciliation process (e.g., ACAS, in-court family conciliation) = have a statutory basis; Conciliators = appointed by an outside body, not parties. Other conciliation schemes: Disability Conciliation Service, Furniture Ombudsman Conciliation Scheme. Table 23.1 Conciliation vs Conciliation Non-adjudicative, facilitative ADR. complaints (not in syllabus) Complaint Problem in a one-off transaction/ incident. Typically raised by a customer/ service use Grievance Complaint in a continuing relationship. Commonly: employees vs employers. Blue = common exam Qs MEDIATION DISPUTE SUITABLE FOR MEDIATION para 13.08 Suitable for ALL disputes resolvable by negotiation. REGARDLESS OF: Subject matter of underlying cause of action. Applicable to ALL types of: Contract, Tortious, Consumer, Neighbourhood, Housing, Family, Regulatory and Public sector. para 13.09 Indicators for using Contractual Parties may be bound by a dispute resolution clause to Mediation Obligation: attempt mediation before litigation/arbitration. (see Ch. 2: Multi-party Useful for disputes with multiple issues. 2.31–2.40 Disputes: Includes conflicts of law and jurisdictional issues. 2.42–2.48) Court Court may encourage or direct parties to attempt Encouragement: mediation. Adverse Costs Parties may face adverse costs or sanctions for Orders: unreasonably refusing to mediate. para 13.10 Not suitable for: Unsuitable circumstances in Ch. 2 at 2.49—2.61. Circumstances Debt claims where: no sustainable defence → more advantages to issue proceedings → apply for summary judgment. TIMING OF MEDIATION para 13.11 If a dispute = suitable for mediation → consideration: timing. Mediation can take place: At any Stage Up to Trial; Even pending Appeal (e.g., Court of Appeal Mediation Scheme) Emphasis SHOULD be on: parties consensually agreeing on Best Time to mediate Court's Role: set timetable for trial that allows parties to take part in ADR along the way. Timing of ADR: Chapter 3 para 13.12 If the parties have: Optimal Timing for Fully Defined Issues Mediation: Key Information Disclosed Claim & Counterclaim Quantified → Most Advantageous time for mediation: BEFORE Proceedings Issued Advantages of doing so: Ch. 3 at 3.06 Blue = common exam Qs para 13.13 If further info/ doc needed to: Further info/ doc evaluate strengths & weaknesses of each party’s position needed can be agreed before mediation / as part of agreed mediation procedure. para 13.14 If mediation cannot begin BEFORE issuing proceedings, Optimal time for best time is AFTER: mediation after Exchange of Statements of Case; proceedings Disclosure of Documents. The later mediation takes place → Decreased Cost Savings from Settlement If proceedings started: Apply for stay of proceedings; and Suspend court timetable to save costs. para 13.15 ANY decision to refuse Mediation: Decision to refuse Must be objectively reasonable + mediation explain/justify to court. Unreasonable Refusal → Adverse costs order possible. PERSUADING A RELUCTANT PARTY TO CONS