Civil Litigation Revision Notes PDF

BPC Revision Notes Civil Li ga on Unit Topic Subheading Notes & Case Law Unit 1 General Compulsion to  A failure to make reasonable use of the Principles of use ADR ADR may be met with costs penalty. ADR  Important to dis nguish between diﬀerent level of compulsion to establish whether the use of ADR is necessary – at the most serious end on the scale of compulsion it is not thought as acceptable as it would likely to breach of Human Rights.  Civil Procedure provides support for the use of ADR through case management and sanc ons – so long as the case can go to trial.  Jackson Review of Cost supported view that media on should not be compulsory, though a court will make its own objec ve judgment as to whether the use of ADR is reasonable in a case.  Court of Appeal – acceptable for a judge to order early neutral evalua on where appropriate even if party does not consent. NB – Eﬀect is ‘forcing a party to take independent evalua on of their case into considera on.’ o CASE LAW – Lomax v Lomax  Not possible to compel party to agree to se lement in a non-adjudica ve process – though party may be bound by decision in a valid adjudica ve ADR process that a party has agreed to use.  Court of Appeal comment on whether there should be ADR compulsion for li gants in person during li ga on when it is not objec vely sensible o CASE LAW – Wright v Micael Wright Supplies Ltd  ADR use is an obliga on in some categories e.g. boundary disputes – however Civil Jus ce Working Party recommended promo ng ADR but not making it compulsory. Mo va on for  Lower Costs - ADR lowers costs of the Use of ADR resolving a dispute, especially if case se led early and if a non-adjudica ve is used. Cost advantages of ADR reduce if not used early in the stages of dispute, if it fails, and/or if more expensive type of ADR is used, but cost-beneﬁt analysis may help avoid this.  Speed of Se lement – Non-adjudica ve ADR or expert determina on can be quick. There is less cost advantage with arbitra on.  Choice of Forum – Most forms of ADR allow a wide choice in selec ng an arbitrator, mediator, or independent evaluator. Beneﬁcial where par es need speciﬁc type of exper se, or a person they have shared respect for.  Control of process – ADR process is subject to contractual agreement. Process op ons can be agreed upon based on needs. If an adjudica ve process is used, control is passed unto the individual reaching a decision.  Flexibility of process – Adjudica ve ADR allows for ﬂexible process, non- adjudica ve open to tailoring need of a par cular dispute. ADR may be able to address concerns not strictly related to legal rights. o CASE LAW – Great Ormond Hospital v Yates  Conﬁden ality – Party may prefer more private process. Conﬁden ality more protected with ADR by ‘without prejudice’ principle, and conﬁden ality clauses. This is important where there may be commercial interest.  A wider range of issues/outcomes may be considered – Li ga on process mainly deals with issues deﬁned by statement of case. In ADR Par es can deal with all issues between them. Non-adjudica ve allows for par es to agree on any terms they wish. ADR deals with complex issues that cannot be reduced to statement of case.  Shared future interest may be protected – Li ga on deals with issues occurred in the past. ADR is more eﬀec ve in preserving rela onships and reaching a se lement reﬂec ng future inten ons.  Use of a problem-solving approach – Li ga on is an adversarial process, deepens ri between par es. ADR is a more construc ve process, e.g. experience mediator will be able to use a range of techniques to move away from refusal to agree.  Risk Management – Only cases with a 51% chance will proceed to li ga on on the basis of it being won on the balance of probabili es, if won, reasonable and propor onate costs are reimbursed. Risk is managed through construc ve and proac ve use of ADR. Criteria/Basis for  Cost minimisa on – Low value cases will the selec on of need to keep costs propor onate. Court an ADR Op on based media on may be provided free of charge. Nego a on will be cheaper than media on In high value cases, nego a on, media on, or early neutral evalua on will also be very cost eﬀec ve if tailored to the dispute of the case.  Fast resolu on – Non-adjudica ve op ons will be more eﬀec ve if quick resolu on is important e.g. nego a on, or media on. In appropriate cases, early neutral evalua on may be beneﬁcial in narrowing the issues and speed resolu on.  Control over ADR process – Party can have substan al control over ADR process as it is primarily based on agreement. PARTICULARLY RELEVANT in non-adjudica ve ADR as se lement is only ach8ived via agreement. Adjudica ve op ons such as arbitra on do not allow for control over outcome, may allow for control over forum or process.  Party objec ves – For pecuniary objec ves, any ADR process may be relevant, for non-pecuniary objec ves non-adjudica ve ADR may be relevant as it allows for discussion.  Maintenance of future rela onships – If ongoing rela onship between the par es is predicted, non-adjudica ve ADR may be relevant. Li ga on may undermine rela onship if not.  Expert importance – If expert opinion is important, early neutral evalua on/expert determina on may be considered. This may be followed by then nego a on or media on.  Neutral assistance – Par es may lose focus on the objec ve of the dispute e.g. becomes about winning, diﬃcult to ﬁnd compromise. Adjudica ve ADR in this case may be the only op on. Expert mediator may facilitate objec ve views on the dispute. o CASE LAW – Northrop Grumman Mission Systems Europe Ltd v BAE Systems Ltd When ADR is not  Cases involving public law rights appropriate  Where a party can show that it is reasonable to refuse media on as it is unlikely to succeed, thus wasted money and me o CASE LAW – Uwug Ltd v Ball  Need for precedent – Concern as to whether ADR may undermine development of legal precedent, common law development depends on reported court decisions (aka precedent) causing the law to ossify. Such development may also mean lawyers would not be able to easily track decisions outside of court it is in the public interest that suﬃcient cases reach trial to con nue develop law through precedent – Genn, H. and Mulcahy, L. “The collec ve interest in private dispute resolu on” pp.59 – 80.  In some circumstances outcome can only be achieved via court order e.g. declara on of legal rights, or technical orders. ADR may be relevant in agreeing term in an order.  Interim orders – ADR is only relevant once an interim order has been made. Arbitrators may have some power to make relevant orders, or par es may agree to some condi on before agreeing on the use of ADR.  Rules providing for disclosure and exchange of witness statements will be par cularly important e.g. where one party is not forthcoming in producing relevant informa on. Judge may order for pre-ac on disclosure to support use of ADR.  Strength of the case – Party with a strong case ‘may not act unreasonably in refusing ADR’ HOWEVER this must be objec vely jus ﬁable, and only a factor not the sole reason for refusal. In this case party may apply for a summary judgement. o CASE LAW – Swain Mason v Mills & Reeve o CASE LAW – ADS Aerospace Ltd v EMS Global Tracking Ltd  Complexity of the case – Complex law may need a judge decision, or where cross examina on may be important. HOWEVER, ﬂexibility of ADR can be used be used imagina vely to address mul party commercial or negligent cases. o CASE LAW – Channel Tunnel Group Ltd v Balfour Bea y Ltd Not necessary to li gate just because law in the area is complex. o CASE LAW – Faidi v Elliot Corpora on  High levels of animosity/Broken down trust might suggest that a process based on agreement may not work. Does not mean li ga on is inevitable, may introduce robust impar ality via skilled mediator or robust neutral evalua on by an expert. o CASE LAW – Wright v Michael Wright Ltd Court is not to be used as a ‘weapon of senseless war’ e.g. leading to assets disappearing in cause o CASE LAW – Kaneria v Kaneria o CASE LAW – Daga v Bangur  Power imbalance – A non-adjudica ve ADR process may not be appropriate where party has more resources/improper control over the other. May be appropriate if suﬃciently strong third party is involved.  Quasi-criminal allega ons – Fraud or libel cases may not be suitable for non- adjudica ve ADR e.g. if cross examina on/judicial determina on is key.  Vindica on in court – Par es may seek a day in court as vindica on. This may be a reason for refusal of ADR. Refusal must be placed in the context of cost and chances of success. ADR process can be tailored to allow par es to make statements, of evidence. o CASE LAW – Gore v Naheed  Issues with enforcement – Non- adjudica ve ADR usually results in contractual se lements, no issue if terms are clear and agreed. HOWEVER, Adjudica ve ADR may lead to issues if party does not agree to decision. ADR may be be er to be used a er issue of proceeding, outcome recorded in a consent order easier to enforce. Du es under the  Lawyers and par es are required to Civil Procedure further the courts overriding objec ve. Rules This applies not only to the court, but also between lawyer and client, and par es and lawyers. o CASE LAW – Michael v Middleton  According to the Guidance Notes on Precedent H - es mated cost for ADR should cover se lement nego a ons, part 36 and other oﬀers, advising the client, and dra ing se lement agreement/Tomlin order. Main elements of  Advice at key stages of li ga on, also the role of a ensuring client is suﬃciently aware of lawyer ADR alterna ves.  Providing objec ve info on relevant ADR op ons e.g. pros and cons, where to get info etc.  Advice on ADR pre-li ga on considera ons, overriding objec ve of ADR, penal es resul ng from unreasonable refusal of ADR, funding and costs in rela on to ADR – though no general duty for barristers unless instructed to do so. o CASE LAW – Andrew v Messer Beg  If ADR is selected clear instruc ons on the appropriate form of ADR, if not selected must ensure objec ve reasons are iden ﬁed and supported with suﬃcient evidence.  Assist in the selec on of independent third party to conduct ADR process.  Advising on pros and cons of non- adjudica ve ADR, and advising on dra ing terms of a se lement. Authority to  Authority to se le on the basis of clear se le client instruc ons important in ADR, especially in non-adjudica ve ADR. Agreements should be reached within parameters se by client instruc ons.  A lawyer nego a ng on a client’s behalf should reach agreement only if client agrees – client has authority to se le therefore binding.  Limits on authority to se le should not be exceeded – if lawyer agrees without client agreement, client is bound to it, and then they could bring claim against lawyer for ac ng without authority. If lawyer misrepresents terms of client, se lement could be set aside – uncertain whether good law. o CASE LAW – Re Roberts Judicial  Courts repeatedly have encouraged ADR, encouragement par cularly media on.  Judges will ques on par es as to the steps taken to a empt se lement and avoid li ga on. o CASE LAW – Dyson v Leeds City Council  Where bilateral nego a ons fail, but media on would be appropriate par es are obligated to a empt it. Court will punish party that frustrates the process e.g. delaying, etc. o CASE LAW – Thakkar v Patel The court’s power  The court cannot compel par es to use to compel par es ADR if they choose not to, nor can it compel par es to se le if they choose ADR. o CASE LAW – Halsey v Milton Keynes General NHS Trust Comments – Dyson LJ stated that compulsion of ADR would be regarded as unacceptable constraint on the right of access to the court, therefore viola on of Ar cle 6 of the European Conven on on Human Rights.  NEW UPDATE – Churchill v. Merthyr Tydﬁl County Borough Council EWCA Civ 1416  The Court of Appeal (CoA) delivered a judgment on 29 November 2023, considering whether the court can order par es to engage in non-court-based dispute resolu on. Key Issues: o Can the court order par es to engage in non-court-based dispute resolu on? o Under what circumstances should the court order such a process? Court’s Findings: o The CoA conﬁrmed that the court can lawfully stay proceedings and order the par es to engage in non-court- based dispute resolu on. o A previously important passage from the 2004 case of Halsey was declared obiter (non- binding) by the CoA, meaning the court has discre on in deciding whether to order non- court dispute resolu on, and this is not a ﬁxed rule. Discre on of the Court: o The court’s discre on will be guided by various factors, but no ﬁxed principles were laid down by the CoA regarding which factors should be considered. o The speciﬁc method of non- court dispute resolu on (e.g., media on, nego a on) will be relevant in deciding whether to order or facilitate the process. Outcome: o The CoA did not establish strict rules but aﬃrmed the court’s discre on to facilitate or order non-court-based dispute resolu on based on the circumstances of each case. Key Takeaways: o Courts can stay proceedings or order par cipa on in non-court dispute resolu on, but the decision depends on the discre on of the court. o The method of dispute resolu on is a key factor in deciding whether it should be ordered. o The decision in Halsey was no longer binding in this context, and courts now have more ﬂexibility in promo ng alterna ve dispute resolu on methods.  Jackson Review of Costs – Media on should never be compulsory, though courts should in appropriate cases encourage it by poin ng to beneﬁts, direc ng par es to meet and discuss, and by using Ungley order.  Mann v Mann – Court refused to give eﬀect to an agreement that would prevent party from applying to the court for an enforcement unless media on had occurred. Court encouraged ADR by making a Ungley order.  Strongest order for encouragement of ADR is made by the Commercial Court. Par es may also be required to engage in a Judicial Early Neutral Evalua on process conducted by the court as part of its case management powers.  Though courts cannot compel par es to engage in ADR, they may penalise a party for refusing to a empt ADR, especially if ordered to do so. Case  Court may direct par es to consider ADR Management at case management conference or pre- Powers and ADR trial review – order can be made at any case management conference e.g. Halsey/Commercial Court Order.  Ungley order may be also made.  Court that enables numerous adjournments of a trial for se lement nego a ons likely not in breach of common law nor Ar cle 6 of the ECHR.  Since April 2013, part of Jackson Reforms standard direc ons has been used in mul -track cases – mul track cases when dra ing case management direc ons should take this as a star ng point and adapt model direc on to their case.  CPR r3.1(5) – court may ask party failing to comply with a rule, Prac ce Direc on, or Pre-ac on Protocol to pay a sum of money into court.  Court can make early disclosure of documents to facilitate ADR.  Court monitors compliance with any orders and direc ons, and judicial con nuity. Direc ons  Before case is ﬁnally allocated to track, Ques onnaires court will require the par es to ﬁle and and ADR serve a direc ons ques onnaire in Form N181, or N180 – CPR r26.3, PD 4, and PD 26.  Direc ons ques onnaire requires legal representa ve to have explained to their client the need to se le claim, op ons available for se lement, and sanc on costs for refusal.  Par es must also inform the court whether they would like to ‘stay’ for a month to try se le, or explain why it is not possible to se le.  Par es will also have to conﬁrm full compliance to Pre-ac on protocols, if not explain non-compliance/par al compliance. Gran ng ‘Stays’  Court’s general power of management for ADR allow power to make orders ‘staying’ the whole or part of any proceedings un l speciﬁed date/event – ‘stay’ suspends/halts proceedings, avoiding need to prepare for li ga on and ADR at the same me, and saves me and expense.  Proceeding s will automa cally resume from stage reached at the me ‘stay’ was imposed – during period of stay no ac on is allowed from neither party.  Par es may comply with direc ons before stay, but no compliance will be enforceable.  Stays may be prolonged past one month where court permits – court must jus fy longer me.  If stay is granted for ADR to be accepted, par es must keep court informed as to the outcome – if it results in se lement, par es will need to formally dispose of court proceedings via either Consent Order/Timlin Order.  If no se lement is reached par es will have to apply for ‘stay’ to be li ed unless this has already expired. Unreasonable  Court has power to deprive winning Refusal to party of some or all their cost if they consider ADR have acted unreasonably in refusing ADR – however, should not discriminate against successful bodies. o CASE LAW – Halsey v Milton Keynes General NHS Trust Comments – Court of Appeal held that general rule [CPR r44.2(2)] is that costs that follow the event should not be departed from unless successful party acted unreasonably in refusing to agree to ADR. Unsuccessful party bears burden of proof, and court will consider circumstances of the case (Halsey Factors).  Even in Judicial Review, li ga on proceedings should be avoided in exchange for ADR. o CASE LAW – MD v Secretary of State for the Home Department  Halsey factors apply where claimant pursues proceedings rather than ADR through compulsory scheme established by the Financial Services Authority. o CASE LAW – Andrews v Barclays pls  Where compensa on, but not costs can be recovered, court will strike out claim under CPR r3.4, party may also be penalised.  Nature of dispute – Where ADR is unsuitable, reasonable to refuse e.g. where precedent may be needed.  The merits of the case – Party assessment of the merits of the case must be reasonable. If case is borderline, likely not suitable for ADR. Defendants may want to face unfounded claims instead of ADR se lement – in such case court would not consider it unreasonable if successful. o CASE LAW – Daniels v Commissioner of Police for the Metropolis However, in DNS v Blackpool, no defence, regardless of how strong jus ﬁable in front of the claimant’s oﬀer for ADR.  Defendant rejec ng media on ‘Without Prejudice save as to costs’ unlikely unreasonable. o CASE LAW – European Strategic Fund Ltd v SEB AB  Extent as to which other se lement method have been a empted – Court will take into account the fact that se lement has been made but rejected by the successful party. o CASE LAW – Vernacare Ltd v Environmental Pulp Products Ltd  A successful party may be penalised in costs for rejec ng media on, even if they have made an eﬀec ve Part 36 oﬀer, or unreasonably refused an oﬀer to se le made outside the regime in CPR Part 36, unless court can see construc ve willingness to resolve issues.  Whether the costs of ADR would be dispropor onately high e.g. media on may cost as much as a day in court, but not applicable to small claims track as free media on scheme.  Whether Delay in se ng up and a ending ADR would be prejudicial e.g. ADR being proposed at a late stage of li ga on would delay trial.  Reasonable prospect of success – Dyson LJ, unsuccessful party would need to demonstrate that ADR had reasonable prospect of success. Claimant failure  Dis nc on between cases where ADR is to ini ate ADR refused, and where ADR is not ini ated. process  Halsey dis nguished from cases where successful party did not ini ate ADR. o CASE LAW – Vale of Glamorgan Council v Roberts Silence in the  PGF II v OMFS Co 1 Ltd – Halsey Face of an principles were extended, silence in the Invita on to Use face of an invita on to ADR is ADR unreasonable, regardless of refusal to engage.  Where ADR is unreasonable, or where failure to respond was simply a mistake, onus would be on the respondent to prove explana on – failure to provide reasons contrary to the objec ve of requiring par es to consider and discuss ADR. Diﬃcul es should be discussed – principle of propor onality.  Silence in front of an oﬀer to mediate does not a ract costs sanc ons o CASE LAW – R (Crawford) v Newcastle upon Tyne University Though, in this case par es were engaged in other forms of ADR i.e. adjudica on before independent adjudicator. Prac cal Steps to  Party faced with request to engage in Avoid Sanc ons ADR, but believes there are reasonable grounds for refusal should: o Not ignore request for ADR. o Respond promptly, giving full reason as to why ADR is not appropriate – should be jus ﬁed by relevant principles derived from Halsey, in an open le er or le er marked with ‘without prejudice except as to costs. o If lack of evidence for ADR is in dispute, considera on as to this can be obtained during or before ADR. o Le ers should be wri en with care; it should not totally shut the door to ADR at a later date – outright refusal constructed as unreasonable. Timing the use Procedural  Pre-selec on of ADR – Advance of ADR Factors relevant commitment to ADR may be present in a to Timing contract, provided the clause is suﬃciently clear and contractually binding, court is likely to enforce the cause. o CASE LAW – Co UK Ltd v FE Barber Ltd  Pre-selec ng ADR ming can: o Make it easier to deal with dispute construc vely. o More party control, cost- eﬀec veness, and mely dispute resolu on. o Certainty as to how dispute is se led. o Speciﬁc body/person can be iden ﬁed in advance to conduct ADR. o Easier to maintain conﬁden ality. o Easier to maintain construc ve approach.  Use of ADR at Interim stage – This can be on applica on of a party, or on the ini a ve of the judge. o Court may order a party’s legal representa ve to a end court to support use of ADR. o Court may use interim order as to give direc ons to use ADR. o Court may order trail of a preliminary issue if rest of case might se le. o Court may be give guidance on progress of case, and warn as to the penal es of not following guidance. o Interim orders may support use of ADR for complex issues in a case. o Several models for interim orders to support use of ADR have been developed, can be adapted for other courts and circumstances.  It may be reasonable for a party to refuse ADR un l a er key court decision e.g. considera on to strike out the other party case, or clariﬁca on on statement of case issues, or before witness statements are available. o CASE LAW – S v Chapman o CASE LAW – Wethered Estates Ltd v Davis  However, not reasonable to wait un l a er all stages of li ga on up to and including the exchange of witness statements if earlier steps facilita ng ADR could have been taken. Prac cal Factors  DO NOT FORGET – pg. 39 ADR Relevant to Timing Unit 2 Accrual of Date from which  When deadline expires at midnight, any causes of Limita on cause of ac on arising from failure to ac on calculated meet deadline arose on stroke of midnight – NOT following day. o CASE LAW – Ma hew v Sedman Therefore, following day not excluded when calcula ng expiry of limita on period.  If cause of ac on accrued during day, day which cause of ac on was accrued is excluded. Date when ac on  Ac on shall not be calculated from the is “brought” date which the cause of ac on accrued.  Claim form considered ‘issued’ on the date entered on the form by the court– CPR r.7.2(2).  Proceedings ‘start’ when court issues claim form at the request of claimant – Paragraph 5.1 Prac ce Direc on 7A  If claim form is received in court oﬃce earlier than date issued by the court, for purposes of Limita on Act 1980 claim is brought on the earlier date.  If correct fee is not paid by the date of issue of proceedings, me stops running at the date of issue for purposes of limita on provided no abusive intent present. o CASE LAW – Dixon v Radley House Partnership  Claim form issues and sealed by court a er incorrect fee payment stops me running for purposes of limita ons. o CASE LAW – Wells v Wood  Court of appeal held that when new claim is made to amend previous within limita on period, claim is not abusive, and will not become me barred at later stage because court fee is not paid. o CASE LAW – Butlers v Hayes  Court of appeal stated that period of ‘stay’ in proceedings did not count towards me limit for service of claim form. o CASE LAW – Grant v Dawn Mendes Limita on  The  Sec on 2 - Time Limit for Ac ons Periods in case Limita on Founded on Tort: of Tort, Latent s Act Overview - Applies to ac ons founded on Damage, 1980 - tort. Personal Sec ons Limits the period to bring such ac ons to Injury, 2, 5, 10, six years from the date on which the Fatal Accident, 11, 12, cause of ac on accrued. Contract, and 14, 14A, Signiﬁcance - Once six years pass from Contribu on 14B, 24, the accrual of the cause of ac on, the Claims. 28, 32, 33 right to bring an ac on based on tort is generally barred. Applica on - Par es involved need to be aware of the me limit and ini ate legal ac ons within the speciﬁed period. Failure to comply with this me limit may result in the loss of the right to pursue the claim.  Sec on 5 - Time Limit for Ac ons Founded on Simple Contract: Overview - Applicable to ac ons based on simple contract. Imposes a limita on period of six years from the date on which the cause of ac on accrued. Signiﬁcance - Establishes a deadline for ini a ng legal proceedings related to contracts. Non-compliance within the s pulated me may lead to the inability to pursue the claim. Applica on - Relevant in contractual disputes where par es seek legal remedies for breach of contract.  Sec on 10 - Special Time Limit for Claiming Contribu on: Overview - Pertains to ac ons seeking contribu on under the Civil Liability (Contribu on) Act 1978. Limits the me to bring such ac ons to two years from the date the right to recover contribu on accrues. Signiﬁcance - Par es involved in ac ons for contribu on must adhere to the speciﬁed me limit. Applica on - Ensures mely resolu on of contribu on claims.  Sec on 11 - Special Time Limit for Ac ons in Respect of Personal Injuries: Overview - Covers ac ons for damages for negligence, nuisance, or breach of duty related to personal injuries. Provides a three-year me limit from the date of knowledge or the date of accrual of the cause of ac on, whichever is later. Signiﬁcance - Emphasizes the importance of knowledge in determining the me limit. Applica on - Awareness of the defendant's iden ty and the injury's signiﬁcance is crucial.  Sec on 12 - Special Time Limit for Ac ons under Fatal Accidents Legisla on: Overview - Pertains to ac ons under the Fatal Accidents Act 1976. Speciﬁes a three-year limit from the date of death or the date of knowledge, whichever is later. Applica on - Sec ons 28, 33, 33B, and 35 of the Act apply, with excep ons outlined in Sec on 39.  Sec on 14 - Deﬁni on of Date of Knowledge: Overview - Establishes the criteria for determining a person's date of knowledge. Criteria - Knowledge of injury signiﬁcance, causa on, defendant's iden ty, and addi onal facts suppor ng the ac on. Applica on - Knowledge of legal implica ons regarding negligence, nuisance, or breach of duty is irrelevant.  Sec on 14A - Special Time Limit for Negligence Ac ons Where Facts Relevant to Cause of Ac on Are Not Known at Date of Accrual: Overview - Applies to negligence ac ons where relevant facts are unknown ini ally. Provides a period of six years from the date of accrual or three years from the star ng date, whichever is later. ‘Star ng Date’ - Deﬁnes the star ng date as the earliest date when the plain ﬀ has both knowledge and the right to bring an ac on. Knowledge Criteria - Speciﬁes material facts about damage and other facts relevant to the current ac on. Expert Advice - Recognises knowledge acquired from observable facts or expert advice, with condi ons for reasonableness.  Sec on 14B - Overriding Time Limit for Negligence Ac ons Not Involving Personal Injuries: Overview - Bars negligence ac ons not involving personal injuries a er ﬁ een years from the date of the alleged negligence. Signiﬁcance - Overrides the right of ac on even if the cause of ac on has not yet accrued. ‘Innocent Third Party’ - Deﬁnes condi ons for a purchaser to be considered an innocent third party. Excep on - Condi ons for innocence concerning fraud, concealment, or mistake.  Sec on 24 - Time Limit for Ac ons to Enforce Judgments: Overview - Limits the period to bring an ac on upon any judgment to six years from the date on which the judgment became enforceable. Prohibits the recovery of arrears of interest a er six years from the date on which the interest became due. Signiﬁcance - Emphasises the need for mely enforcement of judgments.  Sec on 28 - Extension of Limita on Period in Case of Disability: Overview - Allows extension if the person to whom a right of ac on accrued was under a disability. Permits the ac on within six years from the date when the person ceased to be under a disability or died. Excep on - Excludes cases where the right of ac on ﬁrst accrued to someone not under a disability.  Sec on 32 - Postponement of Limita on Period in Case of Fraud, Concealment, or Mistake: Overview - Fraud, Concealment, or Mistake - Delays the limita on period if the ac on is based on fraud, concealment, or mistake. Period does not start un l the plain ﬀ discovers or could have discovered the fraud, concealment, or mistake with reasonable diligence. Excep on - Certain limita ons regarding property recovery and ac ons against innocent third par es.  Sec on 33 - Discre onary Exclusion of Time Limit for Ac ons in Respect of Personal Injuries or Death: Overview - Allows the court discre on based on the equity of the situa on (‘Equitable Considera on’) concerning Sec ons 11, 11A, 11B, or 12. Note - Court cannot disapply Sec on 12(1) under this sec on, except for speciﬁc scenarios men oned. Considera ons for the Court: o Length of Delay: The court considers the dura on of the delay on the part of the plain ﬀ and reasons behind it. o Evidence Quality: The extent to which, due to the delay, the evidence presented by either the plain ﬀ or the defendant is or is likely to be less convincing compared to if the ac on had been brought within the allowed me under Sec ons 11, 11A, 11B, or 12. o Defendant's Conduct: The court evaluates the conduct of the defendant a er the cause of ac on arose, including how they responded to reasonable requests for informa on or inspec on made by the plain ﬀ to ascertain relevant facts. o Dura on of Disability: If there is a disability a er the accrual of the cause of ac on, the court considers its dura on. o Prompt and Reasonable Ac on: The extent to which the plain ﬀ acted promptly and reasonably once they knew whether the act or omission of the defendant, causing the injury, might be the basis for an ac on for damages. o Expert Advice: The steps taken by the plain ﬀ to obtain medical, legal, or other expert advice and the nature of such advice.  Deﬁni on Clariﬁca ons (Sec on 33.7) - Deﬁnes terms like "the court," "Her Majesty's forces," "overseas opera ons.” Unit 3 The Prac ce Direc on – Pre-ac on  Pre-ac on protocols serve as guidelines Conduct and Protocols for par es' conduct prior to ini a ng proceedings, receiving approval from the Master of the Rolls (CPR, Paragraph 1).  A cau onary note in Paragraph 2 underscores that making false statements in pre-ac on protocol documents can lead to contempt of court proceedings.  Objec ves of Pre-ac on Conduct and Protocols – The direc ve in Paragraph 3 establishes the expecta on that par es exchange suﬃcient informa on before ini a ng proceedings. This informa on exchange is intended to enable par es to understand each other's posi ons, make informed decisions, a empt se lement, consider Alterna ve Dispute Resolu on (ADR), support eﬃcient case management, and reduce the costs associated with resolving disputes.  Propor onality – Paragraph 4 emphasises that pre-ac on protocols and the Prac ce Direc on should not be employed as tac cal devices. Instead, par es are required to take reasonable and propor onate steps in iden fying, narrowing, and resolving legal, factual, or expert issues.  The no on of propor onality is further reinforced in Paragraph 5, where it is stated that costs incurred in complying with pre-ac on protocols or the Prac ce Direc on should be propor onate. It clariﬁes that dispropor onate costs incurred will not be recoverable as part of the costs of the proceedings, referring to CPR 44.3(5).  Steps before Issuing a Claim – Paragraph 6 outlines the steps par es should take before commencing proceedings. If a relevant pre-ac on protocol exists, par es should adhere to it. If not, they should exchange correspondence and informa on with an emphasis on propor onality. Speciﬁc steps include the claimant providing concise details of the claim, the defendant responding within deﬁned meframes, and the disclosure of key documents relevant to the dispute.  Experts – In Paragraph 7, par es are reminded that court permission is required before expert evidence can be relied upon (CPR 35.4(1)). It suggests that, especially in low-value claims, par es should consider using a single expert, jointly instructed by both par es, with costs shared equally.  Se lement and ADR – Paragraphs 8-11 stress the preference for se lement and Alterna ve Dispute Resolu on (ADR) over li ga on. The guidance encourages par es to consider nego a on, media on, arbitra on, early neutral evalua on, or Ombudsmen schemes as alterna ves to formal court proceedings. A party's refusal to par cipate in ADR may be considered by the court when determining addi onal court costs.  Stocktake and List of Issues – Paragraph 12 advises par es, when a dispute persists despite following pre-ac on protocols, to conduct a stocktake of their respec ve posi ons. This involves reviewing papers and evidence to explore the possibility of avoiding proceedings and narrowing the issues before ini a ng a claim.  Compliance with Prac ce Direc on and Protocols – Paragraph 13 emphasizes that if a dispute proceeds to li ga on, the court expects par es to have complied with the relevant pre-ac on protocol or the Prac ce Direc on. Non- compliance may be considered when managing proceedings (CPR 3.1(4) to (6)) and making cost orders (CPR 44.3(5)(a)).  Paragraphs 14-16 elaborate on poten al consequences of non-compliance, ranging from relief of compliance obliga ons to sanc ons, including cost orders and adjustments.  Limita on – Paragraph 17 underscores that the Prac ce Direc on and pre- ac on protocols do not alter statutory me limits for star ng court proceedings. If proceedings are ini ated to comply with the statutory me limit before following the procedures outlined, par es should apply to the court for a stay of proceedings. The Pre-Ac on Protocol for  The protocol primarily serves to personal Personal Injury Claims injury claims an cipated for the fast track, covering not just the personal injury aspect but also other claim elements like property damage. It explicitly excludes claims falling under speciﬁc pre-ac on protocols for low- value personal injury claims, clinical disputes, disease and illness, and personal injury claims below the small claims limit in road traﬃc accidents (Paragraph 1.1.1).  Purpose and Conduct (1.4) – This protocol outlines the conduct expected from prospec ve par es before ini a ng proceedings. It establishes a reasonable process and metable for informa on exchange, sets standards for le ers of claim, and speciﬁcally addresses pre- ac on nego a ons and rehabilita on considera ons, applicable across all claims (Paragraphs 1.4.1, 1.4.2).  Sanc ons for Non-Compliance (1.5) – Non-compliance may result in court- imposed sanc ons. The court will assess whether par es have adhered in substance to relevant principles and requirements, considering the impact of non-compliance on other par es. Minor or technical shortcomings are generally overlooked, especially in urgent ma ers (Paragraph 1.5).  Early Issue (1.6) – The protocol recommends providing defendants with three months to inves gate and respond before ini a ng proceedings. In cases where this meline is not feasible, the claimant's solicitor should give no ce, and par es may seek court extension or stay proceedings to follow recommended steps (Paragraph 1.6).  Li gants in Person (1.7) – Acknowledging par es without legal representa on, the protocol encourages reasonable compliance. The reference to ‘claimant’ covers the claimant’s legal representa ve (Paragraph 1.7).  Overview and Objec ves (2.1) – The protocol's primary objec ves include encouraging early and comprehensive informa on exchange, promo ng be er and earlier pre-ac on inves ga ons by all par es, facilita ng pre-li ga on dispute se lement, ensuring just, propor onate, and eﬃcient case management where li ga on is unavoidable, and promo ng early provision of medical or rehabilita on treatment (Paragraph 2.1).  Le er of No ﬁca on (3.1 - 3.3) – Recognising situa ons where a detailed Le er of Claim is not immediately available, the claimant or legal representa ve may use a Le er of No ﬁca on to inform the defendant and/or insurer of an impending claim. This no ce does not trigger the Le er of Response metable but should be acknowledged within 14 days (Paragraphs 3.1 - 3.3).  Le er of Claim (5.1 - 5.6) – The claimant is advised to send the Le er of Claim promptly, including suﬃcient informa on for the defendant to assess liability and es mate the likely size of the claim. The le er should detail ﬁnancial losses and be sent to both the defendant and insurer within seven days of the defendant's receipt. Inves ga ons on liability are generally deferred un l a response is received (Paragraphs 5.1 - 5.6).  Status of Le ers (5.7) – Le ers of Claim and Response, while crucial, do not carry the same formal status as a court statement. Par es are discouraged from exploi ng this informality, provided there is no intent to mislead the other party (Paragraph 5.7).  Response (6.1 - 6.7) – The defendant must respond within 21 days, admi ng liability, dispu ng the claim, or providing an alterna ve version of events. If the defendant denies liability, relevant documents should be enclosed. The defendant (insurer) has three months from the acknowledgment of the Le er of Claim to inves gate. The claimant should keep the defendant informed of poten al delays (Paragraphs 6.1 - 6.7).  Disclosure - Documents (7.1.1 - 7.1.4) – Early disclosure aims to facilitate informa on exchange, with the claimant iden fying relevant document categories. Pre-ac on disclosure may be requested, and par es are encouraged to assist each other. There is an explicit requirement for the defendant to preserve disclosure documents and other evidence, as their destruc on could be deemed an abuse of the court process (Paragraphs 7.1.1 - 7.1.4).  Experts (7.2 - 7.11) – The protocol encourages the joint selec on of experts, par cularly for medical assessments, and outlines procedures for expert nomina ons, objec ons, and queries. The instruc ng party generally bears expert costs. There is a detailed process for submi ng ques ons on an expert's report for clariﬁca on, and par es may obtain further expert reports with court permission if necessary (Paragraphs 7.2 - 7.11).  Nego a ons Following Admission (8.1 - 8.2) – Upon a defendant's admission of liability causing damage, the claimant, within 21 days of the admission, should send medical reports and a schedule of past and future expenses and losses. The schedule, even if provisional, should provide detailed informa on, especially on ongoing losses. The claimant should delay proceedings for 21 days to facilitate se lement considera ons (Paragraphs 8.1.1, 8.1.2).  CPR Part 36 allows pre-proceedings se lement oﬀers. Par es should assess the appropriateness of a Part 36 Oﬀer before issuing proceedings. The oﬀering party must provide suﬃcient evidence for proper considera on, varying based on the claim's value. Medical reports may not be necessary in cases with no signiﬁcant ongoing injury, and low-value cases may not require a detailed schedule (Paragraph 8.2).  Alterna ve Dispute Resolu on (ADR) (9.1) – Li ga on is recommended as a last resort. Par es, as part of the Protocol, should consider nego a on or other forms of Alterna ve Dispute Resolu on (ADR) to poten ally resolve disputes without commencing proceedings (Paragraph 9.1.1).  Quan ﬁca on of Loss - Special Damages (10.1) – Upon the defendant's admission of liability, the claimant must promptly send a detailed schedule of past and future expenses and losses, even if provisional, specifying ongoing losses. Regular updates should be communicated, keeping the defendant informed of the ﬁnancial loss progression throughout the Protocol period.  Stocktake (11.1) – If Protocol procedures fail to resolve the dispute, par es should independently review their posi ons, strengths, and weaknesses. Joint considera on of evidence and arguments aims to either avoid li ga on or narrow issues before proceedings. In insured cases, the insurer is expected to nominate solicitors for proceedings, with the claimant advised to request this nomina on 7 to 14 days before the intended issue date.  Protocol primarily applies to poten al fast track cases with value of up to £25,000 except occupa onal disease and clinical negligence.  Protocol requires to co-operate on selec on of experts where medical expert is providing a condi on and prognosis report on the accident vic m. However, if the defendant objects may decide for their own expert, but court will decide at alloca on stage whether the cost of the two experts is jus ﬁed.  Personal Injury Protocol does not require a medical expert to be jointly instructed, or for the report to be disclosed to defendant where expert iden ty has not been revealed – such report remain privileged, court cannot order produc on.  Claimant would need court permission to rely on expert report in proceedings, and they would have to bear the cost of such undisclosed report. Consequences Compliance with  The court will take into considera on of Non- this Prac ce non-compliance when giving direc ons compliance Direc on and the for the management of proceedings – Protocols CPR 3.1(4) to (6), and when making orders for costs – CPR 44.3(5)(a). Court will measure compliance ‘in substance,’ will not focus on minor or technical infringements i.e. where ma er is urgent.  Court may decide there has been an infringement where party has either: o Failed to provide suﬃcient info to enable objec ves in Paragraph 3. o Failed to act within me limits set out in relevant protocol, or within reasonable me. o Unreasonably refused ADR, or failed to respond to invita on to do so.  In case of non-compliance, the court may order: o Par es to be relieved of obliga ons to comply or further comply with Pre-ac on protocols/Prac ce Direc on. o Procedures are ‘stayed’ un l compliance of Pre-ac on protocols/Prac ce Direc ons. o Sanc ons to be applied.  Court will consider the eﬀect of any non- compliance when deciding whether to impose any sanc ons, may include: o An order for party at fault to pay for costs of proceedings, or part costs of other party/par es. o Party at fault to pay costs on an indemnity (aka compensa on) basis. o If claimant has been awarded sum of money, an order depriving party of interest on that sum for a speciﬁed period, and/or interest at a lower rate than otherwise awarded. o If party at fault is defendant, order awarding interest at higher rate on that sum (not exceeding 10%) that otherwise awarded.  Timetable and arrangements for disclosing documents and obtaining expert evidence may vary to suit circumstances of the case. The court will expect explana on as to why Protocol has not been followed.  Where party fails to comply with Protocol, court may impose sanc ons, deciding factor will be whether par es have complied in substance with the relevant principles and requirements. Eﬀect of non-compliance on other party will also be considered. Poten al  There are circumstances in which non- Jus ﬁca ons for compliance may be jus ﬁed – so long as Non-compliance it does not frustrate se lement or increase costs unnecessarily. o Where statutory me limit is approaching, and therefore necessary to issue proceedings, par es should apply to court for a stay while they comply with the procedures in the Prac ce Direc on or relevant Pre-Ac on Protocol. o Urgent Ac on may jus fy failure to comply with pre-ac on requirements e.g. freezing injunc on (telling other party in advance would defeat the purpose). However, even in urgency par es should comply as far as reasonably possible.  Non-compliance by other party is not a jus ﬁca on for non-compliance, appropriate cause of ac on is to raise this and keep evidence of the non- compliance. Failure to Comply  Adverse Costs order have been made in with Pre-Ac on cases for failure to follow reasonable Protocols pre-ac on protocols. However, in Cable v Liverpool Victoria Insurance Co Ltd it was held that while non-compliance may amount to contempt of court or abuse of process, courts should conduct a balancing exercise to decide whether it was appropriate to strike out the claim. Se lement and  Li ga on is to be last resort – par es ADR should consider whether ADR might enable se lement.  Par es should con nue consider se lement even a er proceedings have started – Part 36 oﬀers may be made before proceedings are issued.  Par es may nego ate to se le, or use ADR, such as: o Media on – third party facilita ng a resolu on. o Arbitra on – third party deciding the dispute. o Early neutral evalua on – third party giving informed opinion on dispute. o Ombudsmen schemes. Unit 4 Alterna ve Arbitra on ‘Arbitra on claim’ means: Dispute  Any applica on to the court under 1996 Resolu on: Act. Adjudica ve  A claim to determine whether: Op ons o there is a valid arbitra on agreement. o arbitra on tribunal is properly cons tuted, or what ma ers have been submi ed to arbitra on in accordance with an arbitra on agreement.  A claim to declare binding nature on a party of an award by an arbitral tribunal.  Any other applica on aﬀec ng: o Arbitra on proceedings – whether they have started. o Arbitra on agreement.  Arbitra on claim must be started by the issue of an arbitra on claim form in accordance to Part 8 procedure.  Applica on under sec on 9 (1996 Act) to ‘stay’ proceedings must be made by applica on no ce to court dealing with proceedings.  Prac ce Direc ons 62 states which courts arbitra on claim may be started in.  Rule 30.5 – Judge of Technology and Construc on Court may transfer claim to other specialist court. Arbitra on claim must contain a concise statement of:  Remedy claimed.  Ques ons the claimant is seeking the decision of the court.  Details of arbitra on award challenged by claimant specifying which parts are challenged and grounds for challenge.  Show that statutory requirements have been met.  Specify under which sec on of 1996 Act the claim is being made.  Iden fy against which defendants a costs order is sought.  Specify either: o Who arbitra on claim for is for, their role, and whether they are defendants. o If the claim is without no ce under sec on 44(3) of 1996 Act, the grounds relied on.  Unless court states otherwise arbitra on claim must be served to the defendant within 1 month from date of issue – rules 7.5 and 7.6 are modiﬁed accordingly.  If claimant applies for order under sec on 12 of 1996 Act ( me extension for beginning arbitral proceedings, or dispute resolu on) may include alterna ve applica on for declara on that such order is not needed.  Service by alterna ve method of an arbitra on claim form likely to be ordered where the defendant is domiciled in Hague Service Conven on country. o CASE LAW – M v N An applica on seeking a ‘stay’ of legal proceedings under sec on 9 of the 1996 must be served to all par es who have given address of service in those proceedings.  Copy of applica on under Paragraph 1 must be served to other party to legal proceedings regardless if not within jurisdic on, or address is not known. It may be served to: o Last known address. o A place where it is likely to come to his a en on.  Where ques on arises as to whether: o Arbitra on agreement has been concluded. o Dispute (subject-ma er of proceedings) falls within terms of the agreement. Court may decide the ques ons or give direc ons to enable decision, or may order proceedings to be ‘stayed’ pending decision.  Sec on 9 does not apply to if the par es to proceedings are not par es by virtue of sec on 82(2) – inconsistent with the purpose and structure of 1996 Act. E.g. mere legal/commercial rela onship between applicant for ‘stay’ and claimant not suﬃcient, must be a person claiming under/through a party to the agreement. o CASE LAW – City of London v Sanche  Court of appeal in Fortress Value Recovery Fund I LLC v Blue Skye Special Opportuni es Fund LP , held second and third defendants not en tled to stay in proceedings under sec on 9 of the Arbitra on Act 1996. o However, it was held that possible for court to impose stay in favour of a third party on the basis of inten on to rely on a contractual defence (subject to a term providing for the submission of disputes to arbitra on).  Diﬃcul es arise where one agreement gives court jurisdic on, and another refers to arbitra on. Alloca on of jurisdic on will then be based on one of construc on. o CASE LAW – Deutsche Bank Ag v Tongkah Harbour Public Co Ltd  The applica on must be made before taking any step to answer the substan ve claim: o Applica on for security for costs held to be bar the defendant from obtaining a stay in Adams v Catley , so as an applica on for disclosure in Chappell v North , so a ending a case management conference, or applica on for direc ons issued by claimant in Nokia v HTC.  Merely opposing a ﬁnal judgment is generally considered a step in the legal process. However, excep on arises when a defendant not only opposes the judgment but also, at the same me, raises an arbitra on issue and ﬁles an applica on to stay. These combined ac ons are not only opposi on but a more substan al and engaged step in the legal proceedings.  Defendant's applica on for an extension of me to serve the defence is not considered a step in the proceedings - underscores the signiﬁcance of taking speciﬁc legal ac ons alongside expressing opposi on to the judgment for it to be deemed a substan al procedural step. However, second extension of me is indeed considered a step in the proceedings.  If a defendant opposes summary judgment but delays their resistance un l the ﬁrst hearing of the claimant's applica on, it is deemed a step in the proceedings, indica ng that even delayed resistance is considered an ac ve engagement in the legal process. However, when a party ini ates an applica on to stay proceedings pending arbitra on, ac on does not qualify as taking a step in the proceedings under Sec on 9(3) of the Arbitra on Act 1996 - merely ini a ng a stay applica on, along with accep ng the court's jurisdic on, does not cons tute a signiﬁcant procedural step in the ongoing legal proceedings.  The responsibility falls on the claimant to demonstrate that the dispute should not be referred to arbitra on. Two key criteria need considera on: o Conﬁrming the existence of a concluded arbitra on agreement. o Whether the ma er in the proceedings aligns with what should be referred to arbitra on according to the terms of the arbitra on agreement – essen ally whether an arbitra on agreement has been eﬀec vely replaced for a speciﬁc ma er by subsequent consensual contractual processes CASE LAW - China Export and Credit Insurance Corp v Emerald Energy Resources Ltd  Expert (or  Expert determina on is a process in neutral) which an expert (or neutral) is appointed determina on to make a determina on on the issues referred to him or her by the appoin ng par es.  It is a determina ve process, not facilita ve one.  Mostly employed in case of technical nature.  It may be carried out by an appointed expert or a third party.  Par es may contractually bind themselves in advance of any dispute arising to use expert determina on to resolve disputes. Alterna vely, this can also be done a er.  Terms of contract are likely to govern rela onship between the par es, obliga ons of the expert, and circumstances in which the decision will be ﬁnal and binding – this will be usually recorded in the contract.  Expert determina on cannot usually be reviewed or appealed, and par es must comply. This terms if not explicitly stated in a contract will be implied by the court. However, par es may also agree that determina on is only binding on them for a temporary or interim period.  Expert determina on is not subject to decision of the court unless dispute arises as to the jurisdic on of the expert. Alterna vely, a court order may be made to enforce the determina on for non-compliance by a party.  Contract may provide for excep onal circumstances where expert determina on may be challenged. However, other grounds of challenge may exist even if not stated in the contract – The Jackson ADR 24.31-24.52.  In expert determina on, the expert acts as a decision-maker, not witness. However, in court proceedings expert acts as a witness. Therefore, the court is not en tled to examine the approach of the expert under CPR Part 35 or 40. o CASE LAW – Beauty Star Lt v Janmohamed  Expert determina on is subject to li le review or interven on by the court – no award, judgement, or right to appeal, natural jus ce and evidence rules do not apply, unless contract contains terms to the contrary.  An expert in expert determina on has no immunity from suit. Cases suitable for expert determina on – Expert determina on is very useful and cost-eﬀec ve way of determining technical disputes e.g. commercial cases, construc on disputes, real property disputes, land valua ons, and energy disputes. Relevant factors include cost-eﬀec veness, me, and conclusive determina on of ma ers in dispute. Contractual Nature of Expert Determina on – In the event of a dispute between the par es, court may be asked to interpret the contract, and if it clear, it will give eﬀect to it. In doing this, court will iden fy the inten on of the par es by refencing what a reasonable person in their posi on would have understood. The contract will be interpreted in the context of the agreement, as well as any other admissible wider context. Procedure – Typically procedure will include:  Wri en submission se ng out case issues  Copies of all relevant document (par es should cooperate to produce this)  Par es or their lawyers should make submissions at a mee ng/hearing, and a endance and cross-examina ons of witnesses  Par es may agree that expert can conduct their own line of inquiry Nature of the decision – The par es will usually agree that the decision will be binding, so the court will uphold the decision unless there are ground to set it aside. Decision does not take for of an award or order – diﬀerent from arbitra on. Ignoring an expert determina on clause – If it is clearly and unambiguously dra ed, this will upheld by the courts. This prevents par es from having recourse to courts to resolve their dispute.  If one party refuses to comply, the other party may be en tled to damages for breach of contract. o CASE LAW – Sunrock Aircra Corpora on v Scandinavian Airlines System  Court will also ensure to prevent applica ons for pre-disclosure to frustrate, impede, or interfere with contractually agreed alterna ve dispute resolu on processes. Applica ons to stay court proceedings pending expert determina on – Court had secre on to stay proceedings issued by a party who has failed to use contractually agreed process in the contract to determine dispute.  Burden to shows why claim should not be stayed is on the party seeking to li gate. Factors court may be considered: o Whether agreement creates enforceable obliga on requiring expert determina on. o Extent par es have complied with requirements in pre-ac on protocol. o Whether dispute is suitable for ADR process par es have contractually agreed to use. o Costs of ADR compared to costs of li ga on. o Whether dispute could be resolved more quickly by court proceedings. o Whether a stay would accord with the overriding objec ve. o Whether an element of the claim was not subject to expert determina on – so proceedings of that part could not be stayed i.e. parallel li ga on and expert determina on proceedings is likely to increase costs.  Court will have regard for public policy interest and furthering overriding objec ve in resolving commercial disputes. Grounds for challenging the decision – The court will primarily consider terms of the contract in ascertaining whether determina on can be challenged.  If agreed by par es that it should be resolved by expert determina on, expert’s decision is to be conclusive and binding for all purposes. This cannot generally be challenged by seeking to put it aside. o CASE LAW – Jones v Sherwood Computer Service plc  However, there are contractual grounds for challenge: o Failing to provide reasons for determina on – when contract requires reasons to be given o Manifest error - a mistake that is really obvious or can be easily proven without needing to search deeply for evidence. This term is important because the error must be more than just ge ng something wrong. If it were only about being wrong, there would not be a clear limit on when you could challenge a decision. In that case, English courts would end up being used by unhappy par es as another place to argue their case. o An error of law o Lack of procedural fairness o the determina on was not intended to be ﬁnal and binding to ma ers related to the interpreta on, execu on, or implementa on of the contractual terms Procedure for making a challenge – A challenge to a decision by expert determina on will be made by issuing Part 8 proceedings. May be issued in advance to decide any disputes about expert’s interpreta on, or to resolve disagreement of ma ers referrable to expert.  If the decision is set aside, court may make determina on, or appoint new expert. Enforcing a decision – Decision by expert determina on cannot be enforced in the same way as a court decision.  Failure to comply to expert decision amount to breach of contract, proceedings may be issued for breach. Court can make order giving eﬀect to the decision expert. Summary judgment is likely to be granted to enforce decision.  Winding-up or bankruptcy proceedings may be brought against party refusing to pay sum awarded by an expert determina on. Unit 5 Alterna ve Early Neutral Early Neutral Evalua on (ENE) is a private, non- Dispute Evalua on binding assessment of the facts, evidence and/or Resolu on: legal merits of one or more of the issues in the Non- case. Adjudica ve  Can be undertaken on behalf of the Op ons par es jointly or at the request of one party.  Process is without prejudice – without weakening par es’ posi on, and non- binding. Evalua on will be given a er the evaluator has considered materials/submissions.  ENE is more eﬀec ve if undertaken at early stage in dispute.  Ene is an advisory and evalua ve process, similar to media on but media on is a facilita ve process.  Diﬀerence between ENE and Media on is that ENE involves a neutral third party evalua ng a dispute without themselves becoming involved.  ENE can take place within court system, but usually carried out by a judge. It can also take place parallel to li ga on process, or before it.  It is a private conﬁden al process, and evaluator must be impar al. If appointed using ADR provider, they will operate under a code of conduct similar to the one of mediators. Use of Early Neutral Evalua on  ENE is usually employed in the early stages of a dispute, but can be used at any me.  ENE can also be used to se le disputes during assessment of costs.  ENE is mainly used as an unbiased evalua on method to se le dispute by nego a on or even media on.  Useful where par es may have unrealis c and ﬁxed views on one or more issues.  Useful more where issues require analysing/applying law, technical or specialist processes, or evidence to given set of facts rather than factual issues. Procedure  The way evalua on is conducted decided by evaluator.  Process is ﬂexible – par es can tailor it to meet the needs of their case.  Evaluator is usually instructed by both par es, where both par es instruct, they will both agree the terms and ambit of instruc ons.  Par es may also agree for evaluator to carry own inves ga on independently, and then make recommenda on.  Evaluator may hold preliminary mee ng to agree on ground rules, documenta on, whether hearing is required, and me limits for each stage.  Par es will usually make wri en submissions to the evaluator joined with evidence/suppor ng documents.  Par es may agree to present some or all of their case at an oral hearing.  Evaluator may hold further mee ng with par es to obtain further informa on.  Evaluator will evaluate evidence and law bearing in mind par es’ submissions and produce a recommenda on se ng out their assessment of the merits of dispute and outcome.  Evalua on is non-binding; par es do not have to accept it but may se le dispute according to recommenda ons. Judicial Evalua on  ENE may be carried out by the judge to help par es se le the case – CPR 3.1(2)(m). Judge will consider legal/factual issues, evaluate evidence and any submissions of the par es. Judge is to provide a provisional view on the case if asked by the par es. o CASE LAW – Seals v Williams  Court may order ENE even if one par es does not consent to.  Judicial ENE can give the par es some indica on of the likely outcome of a trial – strong persuasive nature.  Useful where limited disputes of factual nature, and also where par es have diﬀerent opinion on value of claim, or strength/speciﬁc issues of the claim.  Can be useful in providing guidance on court’s view of quantum. Concilia on Concilia on is a

Civil Litigation Revision Notes PDF

Document Details

Tags

Related

Summary

Full Transcript

Upgrade to continue