CIVIL LITIGATION
Chapter 4 – Alternative dispute resolution
❖ ADR is a means of resolving disputes by using an independent third party, who may help the
parties to reach their own solution but who cannot impose a solution.
❖ Other forms of dispute resolution
⮚ Litigation is not voluntary - Once the case is started, usually neither party can withdraw
without paying the opponent’s costs.
⮚ Arbitration is voluntary in the sense that parties voluntarily enter into an arbitration
agreement.
⮚ Negotiation is both voluntary and non-binding, but it is not the same as ADR - no
independent third party.
❖ The independence of the third party (that can’t impose solution) is an essential feature of ADR.
❖ Independent third party not only will be trained to act as a neutral, but also should have any
necessary industry knowledge required to understand the dispute.
❖ Advantages for ADR
⮚ CPR 1998 recognises advantages of ADR. Rule 1.4(2)(e) - court may further the overriding
objective of dealing with cases justly by encouraging the parties to use an ADR procedure if
the court considers that appropriate and facilitating the use of such procedure.
⮚ Confidential unlike court which the media can attend.
⮚ Can be significantly cheaper than both arbitration and litigation - because it is quicker.
⮚ Have to pay the third party for services and pay lawyers to help them on the day.
⮚ Save costs because reduction in time lawyers spend preparing and presenting the case and
indirect costs involved in its employees and executives having to spend time reading court
documents, consulting lawyers and attending court.
⮚ Flexible - parties can choose one of several forms of ADR, procedure to be followed and
their neutral person - do not have to comply with any statutes, rules of court or any case law
limiting what the parties or the neutral can do.
⮚ Preservation of business relationship - a non-confrontational method of solving their
problem makes it much easier for them to continue their relationship - solution is theirs and
has not been imposed upon them.
❖ Disadvantages for ADR
⮚ If one party suggests ADR, the other parties do not have to agree - if the parties have started
to resolve a dispute by ADR, most ADR agreements allow any party to withdraw at any stage
before a solution has been agreed.
⮚ The awards are not so easily enforceable - if the parties do agree to terms suggested as a
result of ADR, they have entered into a contract - can be sued for breach of contract.
▪ standard practice in ADR to provide that no agreement will be binding unless in writing
and signed by the parties.
⮚ The facts may not be fully disclosed.
⮚ ADR is not appropriate for all cases:
▪ (a) where the client needs an injunction;
▪ (b) where there is no dispute. If the case is a simple debt collection matter, the creditor
should issue a claim form followed by a summary judgment application, or consider
insolvency proceedings;
, ▪ (c) where the client needs a ruling on a point of law.
❖ Types of ADR
⮚ Mediation
▪ third party who has been selected as mediator will have received written statements
from both parties.
▪ Following that, the mediator will discuss the case with the parties. They will tell him
what they think about each party’s case on a without prejudice basis.
▪ The mediator will not pass on to the other party information which is confidential.
▪ These discussions help the mediator to identify the real areas of disagreement and the
points which are most important to the respective parties.
▪ Other forms of mediation - parties do not have to meet, can be dealt with by
correspondence and telephone conversations.
⮚ Med-arb
▪ parties agree to submit their dispute to mediation and that, if this does not work, they
will refer the matter to arbitration.
▪ Can use mediator as arbitrator - save costs.
⮚ Mini-trial/structured settlement procedure
▪ Parties appoint a neutral who will sit as chairman of a tribunal composed of himself and
a senior representative of each of the parties.
▪ They will then hear and/or read the cases of the two parties (sometimes with an expert),
after which they will negotiate with each other with the help of the independent arbiter.
⮚ Expert appraisal
▪ Parties refer all or part of their dispute to an expert in the disputed field for his opinion.
▪ Opinion not binding but could influence their approach to subsequent negotiations.
⮚ Judicial appraisal
▪ The Centre for Dispute Resolution (CEDR) has a scheme whereby former judges and
senior counsel are available to give a quick preliminary view on the legal position, having
heard representations from both parties.
▪ Matter for agreement between parties whether opinion is to be binding on them or not.
⮚ Expert determination
▪ Halfway house between arbitration and ADR.
▪ Parties select an expert to decide the case for them - they agree to accept his decision,
and if one fails to do so, the other can sue for breach of contract.
▪ The expert’s decision cannot be enforced as a court order and he does not have the
powers of an arbitrator under the Arbitration Act 1996.
▪ Unlike an arbitrator, can be sued in negligence by party who thinks decision was wrong.
⮚ Final offer arbitration
▪ Parties instruct neutral that they will both make an offer of the terms on which they will
settle, and he must choose one of those two offers and no other solution.
⮚ Early neutral evaluation
▪ Parties instruct neutral to make preliminary assessment of facts at early stage in dispute.
▪ Parties submit written case summaries and supporting documents.
▪ The evaluator then makes a recommendation.
▪ This helps the parties to negotiate a settlement (or move to another ADR method).
,CIVIL LITIGATION
Chapter 7.3 – 7.9
THE DEFENCE
❖ Contents
⮚ Rule 16.5 sets out what must be contained in the defence:
▪ (1) In his defence, the defendant must state—
● (a) which of the allegations in the particulars of claim he denies;
● (b) which allegations he is unable to admit or deny, but which he requires the claimant to
prove; and
● (c) which allegations he admits.
▪ (2) Where the defendant denies an allegation—
● (a) he must state his reasons for doing so; and
● (b) if he intends to put forward a different version of events from that given by the claimant,
he must state his own version.
▪ (3) A defendant who—
● (a) fails to deal with an allegation; but
● (b) has set out in his defence the nature of his case in relation to the issue to which that
allegation is relevant, shall be taken to require that allegation be proved.
▪ (4) Where the claim includes a money claim, a defendant shall be taken to require that any
allegation relating to the amount of money claimed be proved unless he expressly admits the
allegation.
▪ (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be
taken to admit that allegation.
▪ (6) If the defendant disputes the claimant’s statement of value under rule 16.3 he must—
● (a) state why he disputes it; and
● (b) if he is able, give his own statement of the value of the claim.
▪ (7) If the defendant is defending in a representative capacity, he must state what that capacity is.
▪ (8) If the defendant has not filed an acknowledgement of service under Part 10, he must give an
address for service.
, ⮚ Need statement of truth.
❖ Admissions, non-admissions, denials and assertions
⮚ For each allegation in particulars of claim - should be admission, denial or, non-admission -
where the defendant has no knowledge.
⮚ Any denial must be explicit and must state reasons for denying.
⮚ defendant must state his own version if he wishes to do so.
⮚ A bare denial is not acceptable.
⮚ ‘rule of implied admissions’, a defendant who fails to deal with an allegation is taken to
admit it: see r 16.5(5).
❖ Point-by-point response
⮚ defence usually answers each paragraph of the claim in turn.
⮚ If a paragraph contains more than one allegation, each should be answered point by point.
❖ Causation and mitigation of loss
⮚ Defence will allege that the claimant caused his own the defendant should assert how.
⮚ Appropriate for defendant to allege that the claimant failed to mitigate his loss with details.
❖ Defence of limitation
⮚ PD 16, para 13.1 - defendant must give details of expiry of limitation period relied on in
defence.
❖ Address for service
⮚ PD 16, paras 10.6 and 10.7. defendant must include postcode and date of birth if individual,
in the defence (acknowledgement of service, admission, defence, reply or other response).
❖ SEE PAGE 106 FOR EXAMPLE
❖ Counterclaim
⮚ If a defendant wishes to make his own claim against a claimant.
⮚ The defence and counterclaim will form one document.
REPLY TO DEFENCE
❖ A claimant may wish to file a reply to the defence but is under no obligation to do so.
❖ Should do so if need to allege facts in answer to defence that not included in particulars of claim.
❖ r 16.7(1), if claimant doesn’t reply to defence is not taken to admit matters raised in defence.
❖ Reply should be filed and served at same time as filing the Allocation Questionnaire - rule 15.8.
❖ As with other statements of case, it should be verified by a Statement of Truth.
❖ SEE EXAMPLE ON PAGE 108-109
AMENDMENTS TO STATEMENTS OF CASE (PART 17)
❖ Part 17 of CPR 1998 provides the ways in which statements of case can be amended.
❖ A party may amend his statement of case at any time before it has been served.
❖ After a party has served his statement of case, he can amend it only with either:
⮚ (a) the written consent of all of the parties; or
⮚ (b) the permission of the court.
❖ Application for permission to amend the statement of case, the applicant should file a copy of
the statement of case with the proposed amendments along with the application notice.
❖ Must file amended statement of case and serve the order and amendment on all other parties.
❖ The statement of case will be endorsed with the words:
⮚ Amended [describe the type of statement of case] by Order of [name of master/district
judge] dated [ ].
❖ Court may give directions regarding amendments and service of amended statements of case.
❖ defendant allowed to amend defence if claimant has permission to amend particulars of claim.
Chapter 4 – Alternative dispute resolution
❖ ADR is a means of resolving disputes by using an independent third party, who may help the
parties to reach their own solution but who cannot impose a solution.
❖ Other forms of dispute resolution
⮚ Litigation is not voluntary - Once the case is started, usually neither party can withdraw
without paying the opponent’s costs.
⮚ Arbitration is voluntary in the sense that parties voluntarily enter into an arbitration
agreement.
⮚ Negotiation is both voluntary and non-binding, but it is not the same as ADR - no
independent third party.
❖ The independence of the third party (that can’t impose solution) is an essential feature of ADR.
❖ Independent third party not only will be trained to act as a neutral, but also should have any
necessary industry knowledge required to understand the dispute.
❖ Advantages for ADR
⮚ CPR 1998 recognises advantages of ADR. Rule 1.4(2)(e) - court may further the overriding
objective of dealing with cases justly by encouraging the parties to use an ADR procedure if
the court considers that appropriate and facilitating the use of such procedure.
⮚ Confidential unlike court which the media can attend.
⮚ Can be significantly cheaper than both arbitration and litigation - because it is quicker.
⮚ Have to pay the third party for services and pay lawyers to help them on the day.
⮚ Save costs because reduction in time lawyers spend preparing and presenting the case and
indirect costs involved in its employees and executives having to spend time reading court
documents, consulting lawyers and attending court.
⮚ Flexible - parties can choose one of several forms of ADR, procedure to be followed and
their neutral person - do not have to comply with any statutes, rules of court or any case law
limiting what the parties or the neutral can do.
⮚ Preservation of business relationship - a non-confrontational method of solving their
problem makes it much easier for them to continue their relationship - solution is theirs and
has not been imposed upon them.
❖ Disadvantages for ADR
⮚ If one party suggests ADR, the other parties do not have to agree - if the parties have started
to resolve a dispute by ADR, most ADR agreements allow any party to withdraw at any stage
before a solution has been agreed.
⮚ The awards are not so easily enforceable - if the parties do agree to terms suggested as a
result of ADR, they have entered into a contract - can be sued for breach of contract.
▪ standard practice in ADR to provide that no agreement will be binding unless in writing
and signed by the parties.
⮚ The facts may not be fully disclosed.
⮚ ADR is not appropriate for all cases:
▪ (a) where the client needs an injunction;
▪ (b) where there is no dispute. If the case is a simple debt collection matter, the creditor
should issue a claim form followed by a summary judgment application, or consider
insolvency proceedings;
, ▪ (c) where the client needs a ruling on a point of law.
❖ Types of ADR
⮚ Mediation
▪ third party who has been selected as mediator will have received written statements
from both parties.
▪ Following that, the mediator will discuss the case with the parties. They will tell him
what they think about each party’s case on a without prejudice basis.
▪ The mediator will not pass on to the other party information which is confidential.
▪ These discussions help the mediator to identify the real areas of disagreement and the
points which are most important to the respective parties.
▪ Other forms of mediation - parties do not have to meet, can be dealt with by
correspondence and telephone conversations.
⮚ Med-arb
▪ parties agree to submit their dispute to mediation and that, if this does not work, they
will refer the matter to arbitration.
▪ Can use mediator as arbitrator - save costs.
⮚ Mini-trial/structured settlement procedure
▪ Parties appoint a neutral who will sit as chairman of a tribunal composed of himself and
a senior representative of each of the parties.
▪ They will then hear and/or read the cases of the two parties (sometimes with an expert),
after which they will negotiate with each other with the help of the independent arbiter.
⮚ Expert appraisal
▪ Parties refer all or part of their dispute to an expert in the disputed field for his opinion.
▪ Opinion not binding but could influence their approach to subsequent negotiations.
⮚ Judicial appraisal
▪ The Centre for Dispute Resolution (CEDR) has a scheme whereby former judges and
senior counsel are available to give a quick preliminary view on the legal position, having
heard representations from both parties.
▪ Matter for agreement between parties whether opinion is to be binding on them or not.
⮚ Expert determination
▪ Halfway house between arbitration and ADR.
▪ Parties select an expert to decide the case for them - they agree to accept his decision,
and if one fails to do so, the other can sue for breach of contract.
▪ The expert’s decision cannot be enforced as a court order and he does not have the
powers of an arbitrator under the Arbitration Act 1996.
▪ Unlike an arbitrator, can be sued in negligence by party who thinks decision was wrong.
⮚ Final offer arbitration
▪ Parties instruct neutral that they will both make an offer of the terms on which they will
settle, and he must choose one of those two offers and no other solution.
⮚ Early neutral evaluation
▪ Parties instruct neutral to make preliminary assessment of facts at early stage in dispute.
▪ Parties submit written case summaries and supporting documents.
▪ The evaluator then makes a recommendation.
▪ This helps the parties to negotiate a settlement (or move to another ADR method).
,CIVIL LITIGATION
Chapter 7.3 – 7.9
THE DEFENCE
❖ Contents
⮚ Rule 16.5 sets out what must be contained in the defence:
▪ (1) In his defence, the defendant must state—
● (a) which of the allegations in the particulars of claim he denies;
● (b) which allegations he is unable to admit or deny, but which he requires the claimant to
prove; and
● (c) which allegations he admits.
▪ (2) Where the defendant denies an allegation—
● (a) he must state his reasons for doing so; and
● (b) if he intends to put forward a different version of events from that given by the claimant,
he must state his own version.
▪ (3) A defendant who—
● (a) fails to deal with an allegation; but
● (b) has set out in his defence the nature of his case in relation to the issue to which that
allegation is relevant, shall be taken to require that allegation be proved.
▪ (4) Where the claim includes a money claim, a defendant shall be taken to require that any
allegation relating to the amount of money claimed be proved unless he expressly admits the
allegation.
▪ (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be
taken to admit that allegation.
▪ (6) If the defendant disputes the claimant’s statement of value under rule 16.3 he must—
● (a) state why he disputes it; and
● (b) if he is able, give his own statement of the value of the claim.
▪ (7) If the defendant is defending in a representative capacity, he must state what that capacity is.
▪ (8) If the defendant has not filed an acknowledgement of service under Part 10, he must give an
address for service.
, ⮚ Need statement of truth.
❖ Admissions, non-admissions, denials and assertions
⮚ For each allegation in particulars of claim - should be admission, denial or, non-admission -
where the defendant has no knowledge.
⮚ Any denial must be explicit and must state reasons for denying.
⮚ defendant must state his own version if he wishes to do so.
⮚ A bare denial is not acceptable.
⮚ ‘rule of implied admissions’, a defendant who fails to deal with an allegation is taken to
admit it: see r 16.5(5).
❖ Point-by-point response
⮚ defence usually answers each paragraph of the claim in turn.
⮚ If a paragraph contains more than one allegation, each should be answered point by point.
❖ Causation and mitigation of loss
⮚ Defence will allege that the claimant caused his own the defendant should assert how.
⮚ Appropriate for defendant to allege that the claimant failed to mitigate his loss with details.
❖ Defence of limitation
⮚ PD 16, para 13.1 - defendant must give details of expiry of limitation period relied on in
defence.
❖ Address for service
⮚ PD 16, paras 10.6 and 10.7. defendant must include postcode and date of birth if individual,
in the defence (acknowledgement of service, admission, defence, reply or other response).
❖ SEE PAGE 106 FOR EXAMPLE
❖ Counterclaim
⮚ If a defendant wishes to make his own claim against a claimant.
⮚ The defence and counterclaim will form one document.
REPLY TO DEFENCE
❖ A claimant may wish to file a reply to the defence but is under no obligation to do so.
❖ Should do so if need to allege facts in answer to defence that not included in particulars of claim.
❖ r 16.7(1), if claimant doesn’t reply to defence is not taken to admit matters raised in defence.
❖ Reply should be filed and served at same time as filing the Allocation Questionnaire - rule 15.8.
❖ As with other statements of case, it should be verified by a Statement of Truth.
❖ SEE EXAMPLE ON PAGE 108-109
AMENDMENTS TO STATEMENTS OF CASE (PART 17)
❖ Part 17 of CPR 1998 provides the ways in which statements of case can be amended.
❖ A party may amend his statement of case at any time before it has been served.
❖ After a party has served his statement of case, he can amend it only with either:
⮚ (a) the written consent of all of the parties; or
⮚ (b) the permission of the court.
❖ Application for permission to amend the statement of case, the applicant should file a copy of
the statement of case with the proposed amendments along with the application notice.
❖ Must file amended statement of case and serve the order and amendment on all other parties.
❖ The statement of case will be endorsed with the words:
⮚ Amended [describe the type of statement of case] by Order of [name of master/district
judge] dated [ ].
❖ Court may give directions regarding amendments and service of amended statements of case.
❖ defendant allowed to amend defence if claimant has permission to amend particulars of claim.
