Table of Contents
GENERAL MATTERS
GENERAL PRINCIPLES OF ADR
Criteria for the Selection of an ADR option
Costs Court-based mediation may be free
Written offer
Negotiation cheaper than mediation
Fast resolution Non-adjudicative option more effective
Adjudication or expert determination
ENE help to narrow issues
Control Non-adjudicative – substantial control
Adjudicative – only control over forum and process
Main objectives Sum of compensation – any ADR process
Non-pecuniary objectives – non-adjudicative because of degree
of discussion
Future relationship Non-adjudicative as terms can be fully discussed
View of an expert ENE or expert determination
ENE can be followed by negotiation or mediation
Neutral assistance Mediation helping parties see the strengths and weaknesses of
the case
When ADR might not be appropriate
The need for precedent
The importance of a court order
The relevance of interim orders
Evidential rules are important – judge can order specific disclosure to support ADR
The strength of a case – even if party feel case is strong, have be objectively justifiable.
Only a factor, does not justify refusal to use ADR.
The complexity of the case – not necessary to litigate if lead to disproportionate cost
High levels of animosity – even then, ADR may still be appropriate
Power imbalance – e.g. domestic violence. ADR still an option if a sufficiently strong
third party can be involved
Quasi-criminal allegations
Having a day in court
1
, Enforcement may be an issue – where parties is not content with the decision given. If an
issue, ADR best used after issue of proceedings so the outcome can be recorded in a
consent order
TIMING THE USE OF ADR
Drawback of using ADR too early:
Time and money wasted if not successful
Unsuccessful ADR process may exacerbate the dispute between the parties
May be difficult to evaluate the case properly
ADR process may be used tactically rather than as a genuine attempt to settle
THE ALLOCATION OF BUSINESS BETWEEN HIGH COURT AND COUNTY
COURTS
PD7A 2.1 May not be started in High Court unless value of the claim is more than £100,000
PD7A 2.2 PI claim, must not be start in the High Court unless the value of the claim is
£50,000 or more
PD7A 2.4 Subject to para 2.1 and 2.2, should be started in the High Court if –
(1) Financial value of claim and amount in dispute, and/or
(2) Complexity of the facts, legal issues, remedies or procedures involved,
and/or
(3) Importance of the outcome of the claim
Claimant believes claim ought to be dealt with by High Court judge.
Cases that must be brought in the High Court:
Provided by statute
Equity claims where the value of the estate, land or fund is over £350,000
Judicial Review claims
Claim for libel or slander
Claim in respect of a toll, market or franchise
Claim in respect of a judicial act arising under HRA 1998
Cases that must be brought in the County Court
Consumer Credit claims arising out of Consumer Credit Act 1974
Possession claims
Determining value of personal injury
Personal injury and loss of amenity
Special damages
Future loss
2
,Calculating value, you must disregard:
Interest
Costs
Any reduction for contributory negligence
Counterclaim or set-off
Social security benefits
THE OVERRIDING OBJECTIVE AND THE DUTY OF THE COURT TO MANAGE
CASES
Rule 1.1 The overriding objective
(1) Dealing with a case justly and proportionately..
(a) Ensuring that the parties are on an equal footing;
(b) Saving expense
(c) Dealing with the case in ways which are proportionate –
(i) Amount of money involved
(ii) Importance of the case
(iii) Complexity of the issue
(iv) Financial position of each party
(d) Ensuring that it is dealt with expeditiously and fairly;
(e) Allotting to it an appropriate share of the court’s resources
(f) Enforcing compliance with rules, practice directions and orders
Rule 1.4 Court’s duty to manage cases
Encourage parties to co-operate (both before and after proceedings have commenced)
Identifying the issues at an early stage
Deciding promptly which issues need full investigation and trial and accordingly
disposing summarily of the others
Deciding the order in which issues are to be resolved
Encourage parties to use ADR if the court considers that appropriate and facilitating
the use of such procedure
Help parties settle whole or part of the case
Fix timetable or control progress of the case
Deal with as many aspects of the case as it can on the same occasion
Dealing with the case without the parties needing to attend court
Making use of technology
Giving directions to ensure that the trial of a case proceeds quickly and efficiently
1.4.4 Encouraging co-operation between parties
Does not require a party to remind their opponent to comply with a procedural time-
limit
Can the court compel the parties to use ADR
3
, Halsey – compulsion of ADR would be regarded as an unacceptable constraint on the right of
access to the court
Directions questionnaire and ADR
Directions questionnaire requires each party to inform the court whether they would like a
stay to for one month try to settle, or why it is not possible to reach a settlement at this stage
Granting stays for ADR
Proceedings stayed at track allocation stage – case will not be allocated to track until
end of that period
Multi-track cases, instead of stay, court may set a sensible timetable
If stay granted for ADR, parties must keep court informed of outcome
ADR results in settlement – formally dispose of court proceedings by Consent Order
or Tomlin Order
If no settlement – apply to have stay lifted if it has not expired
Unreasonable Refusal to Consider ADR
Whether winning party acted unreasonably;
The nature of the dispute
The merits of the case
The extent to which other settlement methods have been attempted
o May be penalised for rejecting mediation, even if they have made an effective Part
36 offer
Whether the costs of the ADR process would be disproportionately high
Whether any delay in setting up and attending ADR would have been prejudicial
o Where ADR is proposed at a late stage
Whether the ADR process had a reasonable prospect of success
Extends to where party is silent to an invitation to use ADR
Claimant’s Failure to Initiate ADR Processes
Distinction should be drawn where successful party rejects an offer of ADR and
where there has been failure to initiate ADR
Halsey does not apply in these circumstances
4
GENERAL MATTERS
GENERAL PRINCIPLES OF ADR
Criteria for the Selection of an ADR option
Costs Court-based mediation may be free
Written offer
Negotiation cheaper than mediation
Fast resolution Non-adjudicative option more effective
Adjudication or expert determination
ENE help to narrow issues
Control Non-adjudicative – substantial control
Adjudicative – only control over forum and process
Main objectives Sum of compensation – any ADR process
Non-pecuniary objectives – non-adjudicative because of degree
of discussion
Future relationship Non-adjudicative as terms can be fully discussed
View of an expert ENE or expert determination
ENE can be followed by negotiation or mediation
Neutral assistance Mediation helping parties see the strengths and weaknesses of
the case
When ADR might not be appropriate
The need for precedent
The importance of a court order
The relevance of interim orders
Evidential rules are important – judge can order specific disclosure to support ADR
The strength of a case – even if party feel case is strong, have be objectively justifiable.
Only a factor, does not justify refusal to use ADR.
The complexity of the case – not necessary to litigate if lead to disproportionate cost
High levels of animosity – even then, ADR may still be appropriate
Power imbalance – e.g. domestic violence. ADR still an option if a sufficiently strong
third party can be involved
Quasi-criminal allegations
Having a day in court
1
, Enforcement may be an issue – where parties is not content with the decision given. If an
issue, ADR best used after issue of proceedings so the outcome can be recorded in a
consent order
TIMING THE USE OF ADR
Drawback of using ADR too early:
Time and money wasted if not successful
Unsuccessful ADR process may exacerbate the dispute between the parties
May be difficult to evaluate the case properly
ADR process may be used tactically rather than as a genuine attempt to settle
THE ALLOCATION OF BUSINESS BETWEEN HIGH COURT AND COUNTY
COURTS
PD7A 2.1 May not be started in High Court unless value of the claim is more than £100,000
PD7A 2.2 PI claim, must not be start in the High Court unless the value of the claim is
£50,000 or more
PD7A 2.4 Subject to para 2.1 and 2.2, should be started in the High Court if –
(1) Financial value of claim and amount in dispute, and/or
(2) Complexity of the facts, legal issues, remedies or procedures involved,
and/or
(3) Importance of the outcome of the claim
Claimant believes claim ought to be dealt with by High Court judge.
Cases that must be brought in the High Court:
Provided by statute
Equity claims where the value of the estate, land or fund is over £350,000
Judicial Review claims
Claim for libel or slander
Claim in respect of a toll, market or franchise
Claim in respect of a judicial act arising under HRA 1998
Cases that must be brought in the County Court
Consumer Credit claims arising out of Consumer Credit Act 1974
Possession claims
Determining value of personal injury
Personal injury and loss of amenity
Special damages
Future loss
2
,Calculating value, you must disregard:
Interest
Costs
Any reduction for contributory negligence
Counterclaim or set-off
Social security benefits
THE OVERRIDING OBJECTIVE AND THE DUTY OF THE COURT TO MANAGE
CASES
Rule 1.1 The overriding objective
(1) Dealing with a case justly and proportionately..
(a) Ensuring that the parties are on an equal footing;
(b) Saving expense
(c) Dealing with the case in ways which are proportionate –
(i) Amount of money involved
(ii) Importance of the case
(iii) Complexity of the issue
(iv) Financial position of each party
(d) Ensuring that it is dealt with expeditiously and fairly;
(e) Allotting to it an appropriate share of the court’s resources
(f) Enforcing compliance with rules, practice directions and orders
Rule 1.4 Court’s duty to manage cases
Encourage parties to co-operate (both before and after proceedings have commenced)
Identifying the issues at an early stage
Deciding promptly which issues need full investigation and trial and accordingly
disposing summarily of the others
Deciding the order in which issues are to be resolved
Encourage parties to use ADR if the court considers that appropriate and facilitating
the use of such procedure
Help parties settle whole or part of the case
Fix timetable or control progress of the case
Deal with as many aspects of the case as it can on the same occasion
Dealing with the case without the parties needing to attend court
Making use of technology
Giving directions to ensure that the trial of a case proceeds quickly and efficiently
1.4.4 Encouraging co-operation between parties
Does not require a party to remind their opponent to comply with a procedural time-
limit
Can the court compel the parties to use ADR
3
, Halsey – compulsion of ADR would be regarded as an unacceptable constraint on the right of
access to the court
Directions questionnaire and ADR
Directions questionnaire requires each party to inform the court whether they would like a
stay to for one month try to settle, or why it is not possible to reach a settlement at this stage
Granting stays for ADR
Proceedings stayed at track allocation stage – case will not be allocated to track until
end of that period
Multi-track cases, instead of stay, court may set a sensible timetable
If stay granted for ADR, parties must keep court informed of outcome
ADR results in settlement – formally dispose of court proceedings by Consent Order
or Tomlin Order
If no settlement – apply to have stay lifted if it has not expired
Unreasonable Refusal to Consider ADR
Whether winning party acted unreasonably;
The nature of the dispute
The merits of the case
The extent to which other settlement methods have been attempted
o May be penalised for rejecting mediation, even if they have made an effective Part
36 offer
Whether the costs of the ADR process would be disproportionately high
Whether any delay in setting up and attending ADR would have been prejudicial
o Where ADR is proposed at a late stage
Whether the ADR process had a reasonable prospect of success
Extends to where party is silent to an invitation to use ADR
Claimant’s Failure to Initiate ADR Processes
Distinction should be drawn where successful party rejects an offer of ADR and
where there has been failure to initiate ADR
Halsey does not apply in these circumstances
4
