WEEK 3 REFORM AND ALTERNATIVE DISPUTE RESOLUTION

Flashcards covering key concepts from the lecture notes on Civil Litigation, Reform, and Alternative Dispute Resolution.

Civil Procedure Rules (CPR)

A unified procedural code for the County and High Court in England and Wales that came into force in 1999 following Woolf’s report.

What is the scope of the Civil Procedure Rules (CPR)?

They form one unified procedural code for both the County Court and the High Court.

What was a key aim of the CPR in terms of litigation culture?

To fundamentally change litigation culture by emphasising pre-trial settlements

What is the 'overriding objective' under Part 1 of the CPR?

To enable the courts to deal with cases 'justly and at a proportionate cost.' This overrides conflicting rules.

What can happen if parties do not follow the CPR?

Solicitors and claimants may be scrutinised and penalised by the court

What are Practice Directions, and how important are they?

They are associated with the CPR and are just as important, providing detailed rules and guidance.

What do the CPR and Practice Directions cover regarding pre-trial procedure?

They include rules like pre-action protocols, requiring claimants to notify defendants of an impending claim and its basis.

Overriding Objective of CPR

To enable the courts in dealing with cases justly and at a proportionate cost.

Do the CPR provide guidance for specific types of claims? Give examples

Yes, such as debt recovery and intellectual property claims.

Practice Directions

Associated with the CPR, these provide rules as to the processes and procedures that must be followed in civil litigation.

Case Management

The process by which a judge decides the route a case follows based on the value of the claim and its complexity.

Small-Claims Track

A route for lower value and less complicated claims with a value of up to £10,000 (with some exceptions).

Fast Track

A route for claims with a value of between £10,000 and £25,000.

Multi-Track

A route for very complicated claims with a value of £25,000 or more.

Pre-action protocols (PAPs)

Designed to encourage parties to behave reasonably during proceedings and find a solution if possible, making litigation a last resort.

Conditional Fee Agreements (CFAs)

‘No win, no fee’ contracts between a private client and a solicitor.

Success Fee (Uplift)

An additional fee that a private client agrees to pay to their solicitor if they win a case under a CFA.

Act that introduced Conditional Fee Agreements

Courts and Legal Services Act 1990 and Access to Justice Act 1999

MGN Ltd v UK (2011)

Case that covered the argument that solicitors were charging unreasonably high success fees.

Callery v Gray [2002]

House of Lords judgment that covered the argument that solicitors were charging unreasonably high success fees.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Act that states that successful clients using a CFA are obliged to pay any success fee and After the Event insurance.

Lord Justice Jackson

Conducted an independent review of civil litigation costs to reduce the costs of litigation to no more than what is proportionate.

Proportionality (Jackson Review)

Emphasized as a key need in civil litigation to reduce costs.

Qualified One-Way Costs Shifting

Claimants will only make a small contribution to defendant’s costs if a claim is unsuccessful.

Mitchell v News Group Newspapers [2013]

Case that emphasized compliance with CPR in submitting costs budget.

Denton v TH White Ltd [2014]

Court of Appeal case that laid down a three-stage approach to breaches of court directions.

Alternative Dispute Resolution (ADR)

Ways of resolving disputes between two parties that does not involve going to court.

Mediation

A form of ADR where an independent third party helps the disputing parties arrive at a mutually acceptable solution.

Conciliation

Similar to mediation, but the independent third party is more interventionist in introducing solutions.

Arbitration

A form of ADR where an independent third party considers the facts and takes a decision that is often binding on one or both parties, governed by the Arbitration Act 1996.

Mediation Directive 2008/52/EC

The main form of regulation of mediation.

ADR Handbook

Developed following a recommendation from Lord Justice Jackson after major civil justice reforms.

Civil Procedure Rule 1.4

Rule that requires the court to undertake case management, including encouraging ADR.

Civil Procedure Rule 26.4

Allows the court to grant a stay for settlement by ADR or other means.

Civil Procedure Rule 44.5

Allows the court to impose costs sanctions if a party fails to use ADR where it would have been appropriate.

Article 6 European Convention on Human Rights

Guarantees an individual’s right to a fair trial.

Halsey v Milton Keynes General NHS Trust [2004]

Established that courts cannot force litigants to engage in ADR.

PGF II SA v OMFS Co 1 Ltd [2013]

Case that endorsed the value of ADR, stating silence in the face of an invitation to participate in ADR is generally unreasonable.

Earl of Malmesbury v Strutt and Parker

Court found that a party who agrees to mediation but causes it to fail is in the same position as a party who refuses to mediate.

Online Dispute Resolution (ODR)

A set of dispute resolution techniques which use information and communications technology for automating and speeding up information processing and for overcoming distances through the use of remote communications.

European Regulation on Online Dispute Resolution No 524/2013

Aims to provide a European online dispute resolution platform to achieve an independent, impartial, transparent, effective, fast and fair, out-of-court resolution of disputes between consumers and online traders.

Burchell v Bullard [2005]

Case that showed the court’s dismay at parties pursuing litigation rather than engaging in ADR.

Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015

UK Regulations that implemented the European Directive on alternative dispute resolution (ADR).

Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015

UK Regulations that implemented the European Directive on alternative dispute resolution (ADR).

Law Take-up Rate of ADR

The most obvious problem with ADR though is the law take-up rate particularly amongst divorcing couples who still opt for settling matters through litigation.

ADR Objective

To find a solution that each party can agree before having to go to court to battle it out in front of a judge.

Civil Litigation

Legal process for resolving disputes between private parties.

Civil Legal System

The framework of laws, rules, and procedures governing private disputes.

Litigation Culture

Emphasis on pre-trial settlements.

Department of Justice Website

Website where you can get a feel for the CPRs.

EX306 Leaflet

A leaflet that gives more information on the small claims track in the civil courts.

Litigation should be a last resort

Pre-trial procedure promotes solutions to avoid court.

Pre-Action Communication

Encouraged between parties to find solutions.

Pre-Action Investigation

Improved as the PAPs encourage.

Settlement Before Proceedings Commence

A goal of Pre-Action Protocols to encourage between parties.

No Win, No Fee

Contract between a private client and a solicitor.

Private Client Wealth

Success fee associated with could be used even if the client can afford fees.

High Success Fees

Losing party would argue that the solicitors were charging these.

Times Newspapers Ltd v Flood [2017]

Case on civil litigation.

Compliance with CPR

Was emphasized as being critically important and failure to do so could attract costs penalties following the Jackson reforms.

Breach of Court Directions (Three-Stage Approach)

1. Is the breach serious and significant? 2. Why did the failure/default occur? 3. Are there any other circumstances to consider to ensure the court deals with this proportionately and justly?

Civil Justice Reforms

A continuing evaluation of these.

Mediation is a…

Form of facilitated negotiation, where a neutral third party guides the parties to their own solution.

Government and the Courts

ADR is encouraged by them.

Divorce, business and trading, telecoms and financial services

Numerous types of disputes that ADR can be used in.

Cheaper, less stressful, quicker

ADR is opted as an alternative to going to court because it can be these.

Breach of an individual’s article 6 European Convention on Human Rights

Court cannot force litigants to engage in ADR as to do so would be this.

Silence in the face of an invitation to participate in ADR

Is, as a general rule, of itself unreasonable.

An ADR Handbook

Was developed following the recommendation from Lord Justice Jackson.

Engage in ADR and as such no costs penalties should be made against that party

If ADR has no prospect of success, it would be reasonable for the successful party to have not agreed to do this.

Halsey v Milton Keynes NHS Trust

The Court of Appeal set out some of the criteria to determine when it is reasonable for a party to refuse to engage in ADR

Expert opinions

Online Dispute Resolution would usually involve this.

Fast and fair

European online dispute resolution platform.

Building work

The Burchell v Bullard [2005] EWCA Civ 358 was a dispute about this.

Dramatic use of language

The court is clearly dismayed by the conduct of the parties in choosing to pursue litigation rather than engage in ADR.

Pilot study

However, Professor Dame Hazel Genn, published a favourable appraisal of mediation in the context of county court disputes in 2001 after observing this..

Necessary for both parties to be willing to engage and for both parties to be of equal strength

However, it was necessary for both parties to be willing to engage and for both parties to be of equal strength

An imbalance of power

Could undermine the ADR scheme.

Settling matters through litigation

Divorcing couples still opt for doing this.

Part 1 CPR

Rules must enable the courts in dealing with cases ‘justly and at a proportionate cost’

ADR Encouragement

(2)(e) Encouraging the parties to use an ADR procedure if the Court considers that appropriate and facilitating the use ofsuch procedure; (2)(f) Helping the parties to settle the whole or part of the case.