Revision Notes Civil Litigation
Syllabus area 1: General Matters
1. Overriding objective [CPR 1.1]
(1) These rules are a procedural code with the overriding objective of enabling the court to
deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and
that parties and witnesses can give their best evidence;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the
need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
2. Application Overriding Objective [CPR 1.2]
The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.
1. The duty of the parties [CPR 1.3]
The parties are required to help the court to further the overriding objective.
2. Court’s duty to manage cases [CPR1.4]
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
[CPR 1.4.4] encourage co-operative conduct on the part of litigants and discourage unreasonable
conduct, both before and after proceedings have been commenced.
1
,(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing
summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court
considers that appropriate and facilitating the use of such procedure;
[CPR 14.4.11] Furthering the overriding objective includes, hearing or ordering the use of early
neutral evaluation.
(f) helping the parties to settle the whole or part of the case;
[CPR 14.4.9] Active case management includes helping the parties to settle the whole or part of the
case. Encouraging consensual settlement both prior to the commencement of litigation and
following commencement was a central aim of the Access to Justice Reports.
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.
3. General principles of Alternative Dispute Resolution
[1.22 Jackson ADR] Use of ADR should be appropriately considered and a failure to make
reasonable use of ADR may be met with costs penalty.
Lowest end of scale: party may be required to consider information before proceedings can be issued.
Little further up the scale: might be required to provide evidence that ADR has been seriously
considered.
Middle of scale: party might be required to at least try to use a process such as mediation before being
allowed to proceed with litigation.
Most serious end of scale: query if a party might be compelled to use a form of ADR rather than
proceed to litigation. (Thought not to be acceptable = breach human right to a fair hearing)
[1.23 Jackson ADR] Not possible to compel a party to agree to a settlement in a non-adjudicative
ADR process, though a party will normally be bound by the decision in a valid adjudicative ADR
process that the party has agreed to use.
4. Motivation for the use of ADR
[2.31-2.40 Jackson ADR]
- Lower costs
- Speed of settlement: quick settlement can of itself limit the indirect costs of dealing with a dispute
2
,- Choice of forum: Benefit where parties feel that the dispute calls for a particular type of expertise.
- Control of process: ADR process is subject to a contractual agreement, parties can agree process
options to suit their needs.
- Flexibility of process: In adjudicative ADR a flexible process can be agreed. In non-adjudicative
ADR the process is normally very open to tailoring for the need of a particular dispute.
- Confidentiality: Court hearings usually public whereas ADR is a private process protected by the
without prejudice principle and confidentiality clauses.
- Wider range of issues/outcomes may be considered: Parties can deal with issues between them.
- Shared future interests may be protected: more effective in preserving a relationship and
reaching a settlement that best reflects the future interests.
- Use of a problem-solving approach: ADR is more constructive, experienced mediator is able to
use a range of techniques.
- Risk management: Risk may be more directly, and cost effectively controlled through constructive
and proactive use of ADR.
5. Criteria for the selection of an ADR option
[2.41- 2.48 Jackson ADR]
- How important is it to minimize costs?
- How important is fast resolution?
- How much control dose the party want?
- What are the main objectives of the party?
- Is a future relationship important?
- Is the view of an expert important to key issues?
- Would neutral assistance be valuable?
6. ADR may not be appropriate
[2.49-2.61 Jackson ADR]
- Need for a precedent
- Importance of court order
- Relevance of interim orders: ADR may be used once appropriate interim orders have been made or
a court order may in limited circumstances be able to make a relevant order prior to the issue of
proceedings or very soon after proceedings have been issues, to support ADR.
- Evidential rules are important: disclosure, exchange witness statements …
- Strength of case: party that believes his case is strong must be objectively justifiable and is only one
factor and will not necessarily of itself justify a refusal to use ADR.
- Complexity of the case
3
, - High levels of animosity
- Power imbalance
- Quasi criminal allegations: cases involving fraud or libel may not be suitable for non-adjudicative
ADR.
- Having a day in court
- Enforcement may be an issue.
7. Duty of lawyer under the CPR rules (ADR)
[4.02 Jackson ADR]
- Comply with obligations and take appropriate action if an opponent does not.
- Advising client
- Drafting settlement agreement or Tomlin order.
8. Role of Lawyer in Advising on ADR
[4.03 Jackson ADR]
- Advice at key stages as litigation progresses ensuring client is sufficiently aware of ADR
alternative.
- providing objective information on relevant ADR options
- Advising client on pre-action obligations
- Advising client on obligations under overriding objective
- Ensuring client is aware of penalties for unreasonable refusal to use ADR
- giving appropriate advice on funding and costs in relation to ADR
- getting clear advice on form of ADR to be used
- ensuring objective reasons are identified and sufficient evidence of those reasons retained (if ADR
is not selected)
- assisting in selection of an independent 3rd party
- advising on strengths and weaknesses of a case
- considering and advising on offers in relation to non-adjudicative ADR
- advising on and drafting terms of settlement.
9. Authority to settle
[4.07-4.08 Jackson ADR]
Acting within authority to settle and on the basis of sufficiently clear client instructions.
4
Syllabus area 1: General Matters
1. Overriding objective [CPR 1.1]
(1) These rules are a procedural code with the overriding objective of enabling the court to
deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and
that parties and witnesses can give their best evidence;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the
need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.
2. Application Overriding Objective [CPR 1.2]
The court must seek to give effect to the overriding objective when it –
(a) exercises any power given to it by the Rules; or
(b) interprets any rule subject to rules 76.2, 79.2 and 80.2, 82.2 and 88.2.
1. The duty of the parties [CPR 1.3]
The parties are required to help the court to further the overriding objective.
2. Court’s duty to manage cases [CPR1.4]
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
[CPR 1.4.4] encourage co-operative conduct on the part of litigants and discourage unreasonable
conduct, both before and after proceedings have been commenced.
1
,(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing
summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court
considers that appropriate and facilitating the use of such procedure;
[CPR 14.4.11] Furthering the overriding objective includes, hearing or ordering the use of early
neutral evaluation.
(f) helping the parties to settle the whole or part of the case;
[CPR 14.4.9] Active case management includes helping the parties to settle the whole or part of the
case. Encouraging consensual settlement both prior to the commencement of litigation and
following commencement was a central aim of the Access to Justice Reports.
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.
3. General principles of Alternative Dispute Resolution
[1.22 Jackson ADR] Use of ADR should be appropriately considered and a failure to make
reasonable use of ADR may be met with costs penalty.
Lowest end of scale: party may be required to consider information before proceedings can be issued.
Little further up the scale: might be required to provide evidence that ADR has been seriously
considered.
Middle of scale: party might be required to at least try to use a process such as mediation before being
allowed to proceed with litigation.
Most serious end of scale: query if a party might be compelled to use a form of ADR rather than
proceed to litigation. (Thought not to be acceptable = breach human right to a fair hearing)
[1.23 Jackson ADR] Not possible to compel a party to agree to a settlement in a non-adjudicative
ADR process, though a party will normally be bound by the decision in a valid adjudicative ADR
process that the party has agreed to use.
4. Motivation for the use of ADR
[2.31-2.40 Jackson ADR]
- Lower costs
- Speed of settlement: quick settlement can of itself limit the indirect costs of dealing with a dispute
2
,- Choice of forum: Benefit where parties feel that the dispute calls for a particular type of expertise.
- Control of process: ADR process is subject to a contractual agreement, parties can agree process
options to suit their needs.
- Flexibility of process: In adjudicative ADR a flexible process can be agreed. In non-adjudicative
ADR the process is normally very open to tailoring for the need of a particular dispute.
- Confidentiality: Court hearings usually public whereas ADR is a private process protected by the
without prejudice principle and confidentiality clauses.
- Wider range of issues/outcomes may be considered: Parties can deal with issues between them.
- Shared future interests may be protected: more effective in preserving a relationship and
reaching a settlement that best reflects the future interests.
- Use of a problem-solving approach: ADR is more constructive, experienced mediator is able to
use a range of techniques.
- Risk management: Risk may be more directly, and cost effectively controlled through constructive
and proactive use of ADR.
5. Criteria for the selection of an ADR option
[2.41- 2.48 Jackson ADR]
- How important is it to minimize costs?
- How important is fast resolution?
- How much control dose the party want?
- What are the main objectives of the party?
- Is a future relationship important?
- Is the view of an expert important to key issues?
- Would neutral assistance be valuable?
6. ADR may not be appropriate
[2.49-2.61 Jackson ADR]
- Need for a precedent
- Importance of court order
- Relevance of interim orders: ADR may be used once appropriate interim orders have been made or
a court order may in limited circumstances be able to make a relevant order prior to the issue of
proceedings or very soon after proceedings have been issues, to support ADR.
- Evidential rules are important: disclosure, exchange witness statements …
- Strength of case: party that believes his case is strong must be objectively justifiable and is only one
factor and will not necessarily of itself justify a refusal to use ADR.
- Complexity of the case
3
, - High levels of animosity
- Power imbalance
- Quasi criminal allegations: cases involving fraud or libel may not be suitable for non-adjudicative
ADR.
- Having a day in court
- Enforcement may be an issue.
7. Duty of lawyer under the CPR rules (ADR)
[4.02 Jackson ADR]
- Comply with obligations and take appropriate action if an opponent does not.
- Advising client
- Drafting settlement agreement or Tomlin order.
8. Role of Lawyer in Advising on ADR
[4.03 Jackson ADR]
- Advice at key stages as litigation progresses ensuring client is sufficiently aware of ADR
alternative.
- providing objective information on relevant ADR options
- Advising client on pre-action obligations
- Advising client on obligations under overriding objective
- Ensuring client is aware of penalties for unreasonable refusal to use ADR
- giving appropriate advice on funding and costs in relation to ADR
- getting clear advice on form of ADR to be used
- ensuring objective reasons are identified and sufficient evidence of those reasons retained (if ADR
is not selected)
- assisting in selection of an independent 3rd party
- advising on strengths and weaknesses of a case
- considering and advising on offers in relation to non-adjudicative ADR
- advising on and drafting terms of settlement.
9. Authority to settle
[4.07-4.08 Jackson ADR]
Acting within authority to settle and on the basis of sufficiently clear client instructions.
4
