DISPUTE RESOLUTION
- If Parties fail at mediation , one party may be ordered
to pay or contribute to other party’s costs if it can be
OVERRIDING OBJECTIVE: CPR 1.1: dealing with the case justly established by way of admissible evidence that its
and proportionately conduct caused mediation to fail where otherwise
the mediation would have had a reasonable
DIFFERENT OPTIONS FOR DISPUTE RESOLUTION prospect of success.
THE CHARACTERISTICS OF ARBITRATION, MEDIATION Advantages Disadvantages
AND LITIGATION WHICH MAKE THEM AN APPROPRIATE Cost and speed Disclosure
MECHANISM TO RESOLVE A DISPUTE.
Significantly cheaper Because there are no formal
ARBITRATION: substitute for litigation. Once a party agrees
than both arbitration and procedures for disclosure of
to be subject to it, cannot take advantage of normal court
litigation, mainly documents and evidence,
process.
because process is there is a risk parties may
quicker, but remember resolve dispute without
Arises in two ways:
still not cheap! knowing all facts.
1. Parties may be contractually bound to use arbitration i.e.
with a clause in contract Flexibility Privacy
2. In absence of such clause, parties may agree once
dispute has arisen. Parties can choose If client requires public
procedure to be vindication, i.e. to ensure
Procedure: followed. No legal any damage to reputation is
o Dispute is referred to an independent arbitrator. requirements and no repaired, privacy is
o This person, professional or trade body may be referred need to comply with any disadvantage.
to in contract, or parties can choose. statute.
o Once a third party has reached decision, the decision is Privacy Enforcement
binding.
Takes place in private, Even if agreement is
Enforcement:
so clients, customers reached, not automatically
o Once decision has been reached, winning party can
and public unaware of binding. BUT, if parties
apply to the High Court under s. 66 of the both dispute and agree to terms of mediation,
Arbitration Act 1966 for permission to enforce outcome. can enter into a contract
arbitration award as if it was a court judgment. and then can be sued for
breach if either part does
Advantages Disadvantages not carry out that party.
Likely to be quicker than Dispute may not receive Preserving business May waste time and
going to court, may be the depth of investigation relationship money
cheaper it would receive in the
courts (depending on
procedures). Ideal where parties will Only effective if both parties
Procedures are less formal Certain remedies such as need to continue to deal genuinely intend to resolve.
injunctions are not with one another. They
available. have chosen a non-
Decision is made by an Unlikely to be a cheap confrontational method
impartial third party who alternative, as arbitration of solving problem which
has expertise in the matter. expert or panel will need makes it easier to
to be paid. Parties will continue relationship, as
want to be repped by solution is theirs and
lawyers, especially if hasn’t been imposed
amount sought is high. upon them.
Remains confidential – takes Just as contentious and Commercial reality Although commercial
place in private adversarial as court resolution, may not be
proceedings legally correct and one
A third party
Solutions reached are often No precedent value party may feel injustice.
unconnected with
more practical than court dispute may be able to
has power to order assist parties to arrive at
Decision is binding Decision is binding – could realistic and workable
be either +ve or -ve. terms of settlement.
Once party agrees to Could include
arbitration, cannot take arrangements court
advantage of normal court could not order, e.g.
process. discount on future
orders.
MEDIATION: informal dispute resolution process where Ability to withdraw Ability to withdraw
decision is made by the parties with assistance of neutral third
party without looking at the merits of the case.
If client unhappy, can If client unhappy, can
withdraw at any time withdraw at any time and
- Will be ‘without prejudice’ so that any future judge won’t
and can proceed with proceed with litigation.
be aware of decisions litigation process. Waste of time/money.
- Means can be open and frank in mediation hearings
1
,LITIGATION: legal action that will proceed through the court
system. Litigation requires parties to comply with the formal
rules (CPR – Civil Procedure Rules) surrounding procedures and
evidence. Judge is one making final decision over dispute.
Can court order parties to be engaged in ADR? YES
CHURCHILL V MERTHYR TYDFIL CBC [2023] COURT CAN
ORDER PARTIES TO ENGAGE IN ADR provided that the order
made does not impair the very essence of the C’s right to
proceed to a judicial hearing, and is proportionate to achieving
the legitimate aim of settling the dispute fairly, quickly and at
a reasonable cost.
2
,CIVIL PROCEDURE TIMELINE 13. Disclosure & Inspection
o Standard disclosure unless otherwise
ordered.
o Form N265 used.
Stage 1: Pre-Issue Stage 14. Exchange of Witness Statements
1. Pre-Action Protocols o In accordance with directions.
o Comply with relevant Pre-Action Protocol o Usually simultaneous exchange.
(e.g. Letter of Claim).
15. Exchange of Expert Reports (if permission
o Parties should attempt ADR, consider granted)
settlement, and make/consider Part 36 o Single joint expert unless court allows party
offers.
experts.
Stage 2: Issuing to Defence o May be followed by expert meetings and
2. Issue of Claim Form joint statements.
o Claimant issues claim and serves on 16. Pre-Trial Checklist (Listing Questionnaire)
Defendant within 4 months (or 6 months if o Filed by date set in directions (usually 8–
served outside E&W). 10 weeks before trial).
3. Particulars of Claim (PoC) o Confirms readiness for trial.
o May be served with the Claim Form or
separately within 14 days of service of the Stage 5: Final Stages
Claim Form. 17. Pre-Trial Review (PTR) (multi-track only, if ordered)
o But no later than 4 months from issue of o Typically held 2–4 weeks before trial.
the Claim Form. o Ensures directions complied with.
4. Acknowledgement of Service (AoS) 18. Trial
o Defendant must file AoS within 14 days o Oral evidence presented; judge gives
after service of PoC if they need extra time judgment either at hearing or reserved.
(extends Defence deadline to 28 days after 19. Judgment & Orders
service of PoC). o May include costs, interest, and payment
5. Defence deadlines.
o Must be filed within: o CPR 44 (Costs) applies.
14 days of PoC if no AoS; OR 20. Appeal
28 days after service of PoC if AoS o Permission required unless automatic right
was filed. applies.
o Defendant may also admit the claim in full or o Must be filed within 21 days of judgment
part. (CPR 52).
6. Judgment in Default 21. Enforcement (if judgment unpaid)
o Claimant may request default judgment if no o Options include:
Defence or AoS filed in time. Warrant of Control (via County
Court Bailiff)
Stage 3: Case Management Charging Order
7. Notice of Proposed Allocation Third Party Debt Order
o Sent with Directions Questionnaire (DQ) Attachment of Earnings Order
after Defence filed. High Court Enforcement Officer
8. Directions Questionnaire (if > £600 judgment)
o Must be filed by both parties.
o Triggers court allocation to a track (Small /
Fast / Multi).
9. Track Allocation
o Claim allocated based on value and
complexity.
o Small Track: ≤ £10,000
o Fast Track: £10,000–£25,000
o Multi Track: > £25,000 or complex claims
10. Case Management Conference (CMC) (multi-track
only)
o Directions and costs budgeting addressed.
11. Costs Budgeting – Precedent H (multi-track
claims)
o ≤ £50k: Only file first page with DQ
o £50k: Full Precedent H 21 days before CMC
o File budget discussion report 7 days
before CMC
Stage 4: Preparing for Trial
12. Case Management Directions
o Issued by the court: sets out timetable for:
Disclosure
Witness statements
Expert evidence
Trial preparation
3
, RESOLVING A DISPUTE THROUGH A CIVIL EXCEPTIONS: No need to comply with PDPaC if:
(a) telling other party before would defeat purpose e.g.
CLAIM where seeking freezing order
(b) urgency of application makes impracticable
PRELIMINARY CONSIDERATIONS: (c) claimant follows a statutory or other formal pre-action
procedure.
LIMITATION
LETTER BEFORE CLAIM
CONTRACT 6 years from the breach of contract. PDPAC sets out that C should issue letter before claim
including:
Where contract was made under (a) Basis on which claim is made
deed: 12 years from when cause (b) clear summary of facts
of action accrued (c) what remedy the claimant is seeking and if it is financial
loss, how amount sought been calculated
D must respond within reasonable time, between 14 days –
TORT 6 years from when the tort is 3 months depending on complexity
committed.
Pre-action Applications
1. Pre-Action Disclosure Applications
NEGLIGENCE 6 years from when damage occurs as
- Sometimes necessary to investigate a potential claim
a result of breach of duty.
- Governed by CPR 31.16
- Order will specify documents or classes of
Where damage is latent (hidden), at documents and deadline for disclosure
a date when damage occurs subject 2. Applications for Pre-Action Inspection of
to: Property
- 6 years from date of cause of - CPR 25.5 but can occur pre-action in protocol phase
action; - Inspection application must be supported by
- 3 years from date of evidence to show that property is or may become
knowledge of damage; subject matter of proceedings
BUT
No later than 15 years after the PARTIES AND CAUSES OF ACTION
date of the negligent act/omission.
PERSONAL 3 years from when the date of the TORT – CAUSE OF ACTION STRUCTURE
INJURY person injured, except for children
which is 6 years from 18th birthday. 1. Duty of Care
Did the Defendant owe the Claimant a duty of care?
If further facts found e.g. person who
Use Caparo v Dickman test ONLY IF NOVEL CASE:
(i) Foreseeability of harm,
drove car, will run from then NOT
(ii) Proximity,
from injury.
(iii) Fair, just, and reasonable to impose a duty.
EXTENDING TIME Court can do this, but only in
LIMIT exceptional circumstances.
Established duty of care: doctor & patient, employer &
employees, road users etc
PRE-ACTION PROTOCOL
2. Breach of Duty – Did D breach that duty?
PDPaC applies to all claims where there is no other
Did the Defendant fall below the standard of care?
specific pre-action protocol.
Test: Reasonable person in the circumstances (Blyth
v Birmingham Waterworks).
Before commencing proceedings, court will expect
parties to have exchanged sufficient information to:
Professional standard: Bolam test (accepted practice
by responsible body of professionals).
(a) understand each other’s position
(b) make decisions about how to proceed
3. Causation
(c) try to settle issues without proceedings
(d) consider form of ADR
Factual: “But for” the breach, would the harm have
occurred? (Barnett v Chelsea).
(e) support efficient management
(f) reduce costs
Legal: Is the Defendant’s breach an effective or
material cause?
Before issuing court proceedings, parties are required to
4. Remoteness
comply with pre-action protocols. Specific protocols already
Was the loss reasonably foreseeable? (The Wagon Mound
in place for: debt claims, personal injury, construction
(No 1)).
& engineering, and professional negligence. These are
annexed to CPR.
5. Loss
If no pre-action protocol exists, there is Practice Direction on Must be actionable damage (physical, psychiatric, or
Pre-Action Conduct and Protocols which contain general economic in limited cases).
guidance. No claim for pure economic loss unless assumption
of responsibility applies.
FAILURE TO COMPLY will lead to sanctions imposed by
court e.g: 6. Defences (if relevant)
- Suspend proceedings until steps which should have been E.g. Contributory negligence (Law Reform
taken are (Contributory Negligence) Act 1945),
- Parties are relieved of obliging protocols Volenti (voluntary assumption of risk),
- Ordering party at fault to pay costs Illegality, etc.
- Ordering party at fault to pay costs on indemnity basis
- Depriving claimant on interest on damages 7. Damages
4
- If Parties fail at mediation , one party may be ordered
to pay or contribute to other party’s costs if it can be
OVERRIDING OBJECTIVE: CPR 1.1: dealing with the case justly established by way of admissible evidence that its
and proportionately conduct caused mediation to fail where otherwise
the mediation would have had a reasonable
DIFFERENT OPTIONS FOR DISPUTE RESOLUTION prospect of success.
THE CHARACTERISTICS OF ARBITRATION, MEDIATION Advantages Disadvantages
AND LITIGATION WHICH MAKE THEM AN APPROPRIATE Cost and speed Disclosure
MECHANISM TO RESOLVE A DISPUTE.
Significantly cheaper Because there are no formal
ARBITRATION: substitute for litigation. Once a party agrees
than both arbitration and procedures for disclosure of
to be subject to it, cannot take advantage of normal court
litigation, mainly documents and evidence,
process.
because process is there is a risk parties may
quicker, but remember resolve dispute without
Arises in two ways:
still not cheap! knowing all facts.
1. Parties may be contractually bound to use arbitration i.e.
with a clause in contract Flexibility Privacy
2. In absence of such clause, parties may agree once
dispute has arisen. Parties can choose If client requires public
procedure to be vindication, i.e. to ensure
Procedure: followed. No legal any damage to reputation is
o Dispute is referred to an independent arbitrator. requirements and no repaired, privacy is
o This person, professional or trade body may be referred need to comply with any disadvantage.
to in contract, or parties can choose. statute.
o Once a third party has reached decision, the decision is Privacy Enforcement
binding.
Takes place in private, Even if agreement is
Enforcement:
so clients, customers reached, not automatically
o Once decision has been reached, winning party can
and public unaware of binding. BUT, if parties
apply to the High Court under s. 66 of the both dispute and agree to terms of mediation,
Arbitration Act 1966 for permission to enforce outcome. can enter into a contract
arbitration award as if it was a court judgment. and then can be sued for
breach if either part does
Advantages Disadvantages not carry out that party.
Likely to be quicker than Dispute may not receive Preserving business May waste time and
going to court, may be the depth of investigation relationship money
cheaper it would receive in the
courts (depending on
procedures). Ideal where parties will Only effective if both parties
Procedures are less formal Certain remedies such as need to continue to deal genuinely intend to resolve.
injunctions are not with one another. They
available. have chosen a non-
Decision is made by an Unlikely to be a cheap confrontational method
impartial third party who alternative, as arbitration of solving problem which
has expertise in the matter. expert or panel will need makes it easier to
to be paid. Parties will continue relationship, as
want to be repped by solution is theirs and
lawyers, especially if hasn’t been imposed
amount sought is high. upon them.
Remains confidential – takes Just as contentious and Commercial reality Although commercial
place in private adversarial as court resolution, may not be
proceedings legally correct and one
A third party
Solutions reached are often No precedent value party may feel injustice.
unconnected with
more practical than court dispute may be able to
has power to order assist parties to arrive at
Decision is binding Decision is binding – could realistic and workable
be either +ve or -ve. terms of settlement.
Once party agrees to Could include
arbitration, cannot take arrangements court
advantage of normal court could not order, e.g.
process. discount on future
orders.
MEDIATION: informal dispute resolution process where Ability to withdraw Ability to withdraw
decision is made by the parties with assistance of neutral third
party without looking at the merits of the case.
If client unhappy, can If client unhappy, can
withdraw at any time withdraw at any time and
- Will be ‘without prejudice’ so that any future judge won’t
and can proceed with proceed with litigation.
be aware of decisions litigation process. Waste of time/money.
- Means can be open and frank in mediation hearings
1
,LITIGATION: legal action that will proceed through the court
system. Litigation requires parties to comply with the formal
rules (CPR – Civil Procedure Rules) surrounding procedures and
evidence. Judge is one making final decision over dispute.
Can court order parties to be engaged in ADR? YES
CHURCHILL V MERTHYR TYDFIL CBC [2023] COURT CAN
ORDER PARTIES TO ENGAGE IN ADR provided that the order
made does not impair the very essence of the C’s right to
proceed to a judicial hearing, and is proportionate to achieving
the legitimate aim of settling the dispute fairly, quickly and at
a reasonable cost.
2
,CIVIL PROCEDURE TIMELINE 13. Disclosure & Inspection
o Standard disclosure unless otherwise
ordered.
o Form N265 used.
Stage 1: Pre-Issue Stage 14. Exchange of Witness Statements
1. Pre-Action Protocols o In accordance with directions.
o Comply with relevant Pre-Action Protocol o Usually simultaneous exchange.
(e.g. Letter of Claim).
15. Exchange of Expert Reports (if permission
o Parties should attempt ADR, consider granted)
settlement, and make/consider Part 36 o Single joint expert unless court allows party
offers.
experts.
Stage 2: Issuing to Defence o May be followed by expert meetings and
2. Issue of Claim Form joint statements.
o Claimant issues claim and serves on 16. Pre-Trial Checklist (Listing Questionnaire)
Defendant within 4 months (or 6 months if o Filed by date set in directions (usually 8–
served outside E&W). 10 weeks before trial).
3. Particulars of Claim (PoC) o Confirms readiness for trial.
o May be served with the Claim Form or
separately within 14 days of service of the Stage 5: Final Stages
Claim Form. 17. Pre-Trial Review (PTR) (multi-track only, if ordered)
o But no later than 4 months from issue of o Typically held 2–4 weeks before trial.
the Claim Form. o Ensures directions complied with.
4. Acknowledgement of Service (AoS) 18. Trial
o Defendant must file AoS within 14 days o Oral evidence presented; judge gives
after service of PoC if they need extra time judgment either at hearing or reserved.
(extends Defence deadline to 28 days after 19. Judgment & Orders
service of PoC). o May include costs, interest, and payment
5. Defence deadlines.
o Must be filed within: o CPR 44 (Costs) applies.
14 days of PoC if no AoS; OR 20. Appeal
28 days after service of PoC if AoS o Permission required unless automatic right
was filed. applies.
o Defendant may also admit the claim in full or o Must be filed within 21 days of judgment
part. (CPR 52).
6. Judgment in Default 21. Enforcement (if judgment unpaid)
o Claimant may request default judgment if no o Options include:
Defence or AoS filed in time. Warrant of Control (via County
Court Bailiff)
Stage 3: Case Management Charging Order
7. Notice of Proposed Allocation Third Party Debt Order
o Sent with Directions Questionnaire (DQ) Attachment of Earnings Order
after Defence filed. High Court Enforcement Officer
8. Directions Questionnaire (if > £600 judgment)
o Must be filed by both parties.
o Triggers court allocation to a track (Small /
Fast / Multi).
9. Track Allocation
o Claim allocated based on value and
complexity.
o Small Track: ≤ £10,000
o Fast Track: £10,000–£25,000
o Multi Track: > £25,000 or complex claims
10. Case Management Conference (CMC) (multi-track
only)
o Directions and costs budgeting addressed.
11. Costs Budgeting – Precedent H (multi-track
claims)
o ≤ £50k: Only file first page with DQ
o £50k: Full Precedent H 21 days before CMC
o File budget discussion report 7 days
before CMC
Stage 4: Preparing for Trial
12. Case Management Directions
o Issued by the court: sets out timetable for:
Disclosure
Witness statements
Expert evidence
Trial preparation
3
, RESOLVING A DISPUTE THROUGH A CIVIL EXCEPTIONS: No need to comply with PDPaC if:
(a) telling other party before would defeat purpose e.g.
CLAIM where seeking freezing order
(b) urgency of application makes impracticable
PRELIMINARY CONSIDERATIONS: (c) claimant follows a statutory or other formal pre-action
procedure.
LIMITATION
LETTER BEFORE CLAIM
CONTRACT 6 years from the breach of contract. PDPAC sets out that C should issue letter before claim
including:
Where contract was made under (a) Basis on which claim is made
deed: 12 years from when cause (b) clear summary of facts
of action accrued (c) what remedy the claimant is seeking and if it is financial
loss, how amount sought been calculated
D must respond within reasonable time, between 14 days –
TORT 6 years from when the tort is 3 months depending on complexity
committed.
Pre-action Applications
1. Pre-Action Disclosure Applications
NEGLIGENCE 6 years from when damage occurs as
- Sometimes necessary to investigate a potential claim
a result of breach of duty.
- Governed by CPR 31.16
- Order will specify documents or classes of
Where damage is latent (hidden), at documents and deadline for disclosure
a date when damage occurs subject 2. Applications for Pre-Action Inspection of
to: Property
- 6 years from date of cause of - CPR 25.5 but can occur pre-action in protocol phase
action; - Inspection application must be supported by
- 3 years from date of evidence to show that property is or may become
knowledge of damage; subject matter of proceedings
BUT
No later than 15 years after the PARTIES AND CAUSES OF ACTION
date of the negligent act/omission.
PERSONAL 3 years from when the date of the TORT – CAUSE OF ACTION STRUCTURE
INJURY person injured, except for children
which is 6 years from 18th birthday. 1. Duty of Care
Did the Defendant owe the Claimant a duty of care?
If further facts found e.g. person who
Use Caparo v Dickman test ONLY IF NOVEL CASE:
(i) Foreseeability of harm,
drove car, will run from then NOT
(ii) Proximity,
from injury.
(iii) Fair, just, and reasonable to impose a duty.
EXTENDING TIME Court can do this, but only in
LIMIT exceptional circumstances.
Established duty of care: doctor & patient, employer &
employees, road users etc
PRE-ACTION PROTOCOL
2. Breach of Duty – Did D breach that duty?
PDPaC applies to all claims where there is no other
Did the Defendant fall below the standard of care?
specific pre-action protocol.
Test: Reasonable person in the circumstances (Blyth
v Birmingham Waterworks).
Before commencing proceedings, court will expect
parties to have exchanged sufficient information to:
Professional standard: Bolam test (accepted practice
by responsible body of professionals).
(a) understand each other’s position
(b) make decisions about how to proceed
3. Causation
(c) try to settle issues without proceedings
(d) consider form of ADR
Factual: “But for” the breach, would the harm have
occurred? (Barnett v Chelsea).
(e) support efficient management
(f) reduce costs
Legal: Is the Defendant’s breach an effective or
material cause?
Before issuing court proceedings, parties are required to
4. Remoteness
comply with pre-action protocols. Specific protocols already
Was the loss reasonably foreseeable? (The Wagon Mound
in place for: debt claims, personal injury, construction
(No 1)).
& engineering, and professional negligence. These are
annexed to CPR.
5. Loss
If no pre-action protocol exists, there is Practice Direction on Must be actionable damage (physical, psychiatric, or
Pre-Action Conduct and Protocols which contain general economic in limited cases).
guidance. No claim for pure economic loss unless assumption
of responsibility applies.
FAILURE TO COMPLY will lead to sanctions imposed by
court e.g: 6. Defences (if relevant)
- Suspend proceedings until steps which should have been E.g. Contributory negligence (Law Reform
taken are (Contributory Negligence) Act 1945),
- Parties are relieved of obliging protocols Volenti (voluntary assumption of risk),
- Ordering party at fault to pay costs Illegality, etc.
- Ordering party at fault to pay costs on indemnity basis
- Depriving claimant on interest on damages 7. Damages
4
