Civil Litigation Notes for the BTC - Distinction! 2 of 310

Civil Litigation Notes for the BTC - Distinction! 2 of 310 OVERVIEW AND INTRODUCTORY MATTERS 1. DISCUSS THE SCOPE OF THE CIVIL LITIGATION COURSE Civil litigation/proceedings is mainly concerned with the enforcement of private rights. When used in contradiction to criminal litigation, it deals with resolution or determination of all disputes other than criminal. Thus, it refers to all processes and procedure relating to civil actions in court. Civil litigation refers to the entire body or rules of procedure and evidence that regulate civil proceedings in a court of law. it is wide enough to accommodate processes employed by parties to resolve the dispute between them before they finally end up in court, including pre-action notices, letters and ADR options employed before during and after proceedings have commenced in court. 2. DISCUSS THE DIFFERENT CIVIL DISPUTES SETTLEMENT MECHANISMS • Litigation and • ADR Mechanisms (A) Litigation: This refers to an action brought by a person against another person based on the legal principles by which the former asserts some rights or legal entitlements from the latter. Features of Litigation BEST WAR PLC • Binding decisions • Enforcement • State Controlled • Time consuming • Win/Lose atmosphere • Adversarial • Rigid and Technical • Publicly conducted—SEE SECTION 36(3) OF THE 1999 CFRN and OVIASU v. OVIASU • Lawyer dominated • Coercive. Cases best suited for litigation MTN RICE • Mandated by law situations 3 of 310 • Time is of essence • Need for precedent • Ridiculous/Frivolous demand situations • Interpretation of documents • Criminal cases (Public Policy) • Emergency situations Shortcomings of Litigation ---DICE2 BIP • Delay • Involuntary for the defendant • Control over the process by the parties is absent • Enforcement problem • Expensive • Breeds enemity—SEE JADESIMI v. OKOTIE-EBOH • Inflexible • Privacy absence (B) ADR Mechanisms: ADR relate to the alternative methods of dispute resolution that is aside litigation. In other words, should a potential litigant not be willing to go to court, which other method can be used to resolve the dispute. ADR can be taken up in 2 Ways: • Parties’ Agreement- to resolve their dispute through ADR. Private agreement e.g. Lagos Court of Arbitration, Mediation centers. • Court Referral- Most courts encourage resolution of disputes by ADR. Under the Rules of Court, the judge has an obligation to encourage parties to refer their disputes to ADR. In this sense ADR is court-connected eg Lagos Multi-Door Court House. SEE Order 25 R. 2(1) HCCPR Lagos state, 2012. Order_Rule_ HCCPR Abuja, 2018. The following are the methods available: ---MANCH EMER • Mediation: Parties settle amongst themselves with the help of a neutral third party known as a mediator who only facilitates the process of settlement. He helps them maintain communication and help them shift to interest-base to ensure an amicable resolution. It is a win-win system. Enforcement of Mediator’s facilitated agreement After the parties agree to the terms, they sign and date the outcome as witnessed by their lawyers. The agreement becomes binding and no party can resile from it. Thus, the right of a party to walk out of mediation ends as soon as the settlement agreement is signed by the parties. Comment [C1]: In the recent past the trend was dispute litigation. However in recent times ADR has occupied a pride of place due to its advantages over litigation and also because most civil procedure rules and even some criminal legislation now encourage ADR. Enabling provisions 1. Lagos rules objective if the rules – to promote efficient and speedy dispensation of justice – see preamble 1(B) Lagos 2. Amicable settlement of disputes by way of ADR (Preamble 1 (C) Lagos civil procedure rules) 3. All originating processes are screened for suitability for ADR and accordingly referred to the Lagos multi-door court house or some other ADR institution – Order 3 rule 11Lagos 2012; Order 5 Rule 8 Lagos 2019; Order 2 Rule 7 Abuja 2018 4. Every claimant in actions begun either by writ if summons or originating summons is required to front load the protocol Form 01 – see the format of the form 5. One of the purposes served by the case management conference is the promotion of amicable settlement of disputes: O 25 R 1 Lagos 2012; O. 27 Lagos 2019 6. The agenda for a judge at the CMC – making referrals to the Lagos multi-door courthouse – O25 R 2 Lagos 2012; O. 27 Lagos 2019; O. 27 Abuja 2018 7. The ADR judge may give directives on matters referred for ADR; failure to comply attract sanctions O 25 R 6 Lagos 2012 4 of 310 2 Thereafter, the parties file it in court and agree that the terms of settlement be made a consent judgment by the court. Mediation is governed by the rules of the mediation center. Features of Mediation ---V CAF • Voluntary (most outstanding feature) • Confidential • Accessible • Facilitative (keeping the interest and options of the parties alive for them to reach an agreement) Qualities of a Mediator for promotion of a successful mediation –PERFECT ING • Patience and persistence • Effective communication skills • Rapport building ability • Flexible and creative • Empathetic (sensitive to the parties’ needs) • Conflict handling ability • Tolerant • Trust worthy • Impartial and neutral • Non-judgmental • Good listening skills Stages of the mediation process • Preparation stage (venue of the mediation session is considered here) • Opening stage (introduction of the mediator and all the parties present; non-disclosure agreement; opening statements; privilege) • Agenda setting/Issue identification/Exploration stage (real issues are found out by the mediator) • Bargaining stage • Agreement stage (concluding agreement and enforcement) NB: Before any further step is taken in the preparation stage, the mediator must ensure the settlement of issues relating to: • Agreement of the parties to mediate • Representation of the parties • Experience of mediation previously by the parties • Authority of the person appearing Comment [C2]: 1. A voluntary ADR method which involves a neutral third party who uses his good offices to assist the parties achieve a negotiated settlement of their dispute 2. The mediator may be selected by mutual agreement, and he assists the parties as the facilitator of the amicable settlement of the dispute Why mediation? 1. Mediation is similar to negotiation with the major difference that mediation involves a neutral third party – the mediator 2. Mediation is available where negotiation is impossible or ineffective due to: i) Hostility and bad blood existing between the parties; ii) Lack of food faith/ distrust; iii) Undue rigidity/ uncompromising/ adamant attitude of either or both parties Comment [C3]: (ask yourself “are the real interests of the parties identified now?”) 5 of 310 • Pending litigation • Particular/special mediator requirement • Arrangement for the reception of parties • Nature of the dispute • Sitting room arrangement NB: The opening statement at the opening stage by the mediator usually consists of four (4) components (if asked to draft a standard mediator’s opening statement, use these components as your guide) IRIG • Introduction of the mediator • Role to be played by the mediator • Impartiality and neutrality of the mediator • Ground rules to govern the process Factors responsible for the failure of mediation • Opposites of the qualities of a mediator mentioned above are all factors • Stonewalling/unwillingness to cooperate on the part of the parties Ethical matters in mediation 1. Don’t misrepresent facts knowingly to the mediator 2. Duty to act with integrity. Mediation or any ADR should nit be used purposely to delay eventual litigation; or only to obtain information of the opposite party’s case – RPC • Arbitration: This is a method of setting dispute through an impartial third party or parties called Arbitrator(s). An arbitrator who sits as an umpire to decide the case is appointed. He hands down an award which is like a judgment of the court enforceable at the High Court. The parties may within THREE MONTHS FROM THE DATE OF THE AWARD OR DATE OF THE ADDITIONAL AWARD (where applicable) apply to the court (HC) to set aside the award on the grounds set out in Sections 29 and 30 of ACA, otherwise the award is binding. The grounds are AMI (i) Award contains decisions on matters beyond the scope of submission to arbitration. NB: where the part not submitted can be separated from that submitted, only the part not submitted is subject to be set-aside. (ii) Misconduct of the arbitrator. (iii) Improper procurement of the arbitral proceeding or award. • Negotiation: This is a bargaining relationship between parties in an effort to reach an agreement. It is a voluntary process and parties have total control over the processes. Comment [C4]: Disadvantages 1.Costlier 2. Want of privacy/ confidentiality 3. Possibility of bias/ partiality on the part of the mediator 4. Where the mediator is not trusted parties may be reluctant to discuss/ disclose information 5. Lack of expertise on the part of the mediator may be fatal to the process Comment [C5]: Process whereby parties to a dispute seek a solution to their difference, in a voluntary and direct manner It may take nay o the forms of communication, e.g. oral or written i. Direct communication in a meeting ii. By telephone iii.SMS iv.Email v.Correspondence – letter Features Direct, limited to the parties, without the intervention of any third party. May take place before an action is filed or even after the filing of such action A “term of settlement” is agreed upon and filed in the latter case. Comment [C6]: Contrast negotiator & mediator 1. Mediator – faster – 3rd party intervention 2. Parties are easily committed to dispute resolution 3. Mediator uses his good offices and expertise to assist in achieving resolution 4. Flowing from 2, brick walls are broken down; effect of ego minimised 5. Enforcement is easier; 3rd party is a potential witness 6 of 310 Parties do not need a third party to settle. They do the offer and acceptance of terms amongst themselves. Circumstances where negotiation is possible ---C2TIMED a. Cooperation is needed b. Compatibility of parties’ interests, needs and goals c. Time constraint affects the parties d. Issue identification/agreement possibility e. Mutual benefit possibility f. External constraints exist g. Desirability of negotiation Factors that account for failure of negotiation ---P2ERU LEG a. Poor negotiation skills b. Personality clash c. Emotional antagonism to the other party d. Revenge desire e. Unrealistic expectations and assessment of interests f. Lack of appropriate authority g. Effective communication problem h. Gamesmanship or Brinkmanship leading to stalemate Stages of Negotiation 1. Preparation/planning – know the claim of your client: e.g. in the accident case identify the heads of damages especially special damages - including future loss; if it involves a claim for injunction: how will this be addressed – an agreement? Does your client want an apology in a defamation case – can this be negotiated? 2. First contact stage – preliminary/exploratory; “ without prejudice” during negotiation – NBA v FAWEHINMI; But note that upon an agreement, parties are bound and “without prejudice” will no longer apply – CFAO V OLUKOGA 3. Agenda setting – parties agree on the agenda and the ground norm for the negotiation 4. Bargaining stage 5. Conclusion – preparation of the agreement; note the areas where no agreement was reached 6. Execution stage Is it court assisted ADR or ADR on a matter already in court? - Terms of settlement to be made part of the court judgement – consent judgement (note: an appeal to a consent judgment is not by right, leave of court has to be sought) – preparatory to its enforcement NB: At the preparation stage, the negotiator is expected to have the following at the back of his mind:--P BROS Comment [C9]: Before negotiating, there must be certain objectives which are: • Must achieve objective • Intend to achieve objective. • Likely to achieve objective. Always identify your achievable goals and whatever the nature of the negotiation it is important to have the requisite of law. Where the negotiation is based on an area of law where you are not an expert, always seek relevant help/assistance from your colleague or seniors. Always bear in mind your achievable goals and the limit to which you can go. Thus do not demand what the other party may not be able to afford. When considering your limit, bear in mind the two major yardsticks which are: a.BATNA- Best alternative to negotiated agreement. A party's BATNA is his walk away alternative. It is his best course of action for satisfying his interest in the event that negotiation with the other party fails. The BATNA of a party is the best option which he will resort to in the event that nothing comes out of the negotiation. The BATNA should be capable of implementation in the absence of agreement after negotiation. For instance, if a party is negotiating with his employer over increment in his wage package, his BATNA may be to find another job with the prospect of good remuneration. b.WATNA- Worst alternative to negotiated agreement. This is the last resort the party has if negotiation fails. If for instance, the alternative the client has is to resort to litigation where he may not be too sure of the amount to be given to him in judgment and the time the case will be concluded, it is better to resort to negotiation. Comment [C8]: Persuasion, debate with the aim of reaching an agreement. Factors that affect bargain in negotiation 1. The legal rights of parties under the law, contract, customs, etc. 2. The interest sought to be protected – the desire, needs, concern of each party, a party in a defamation case may be interested in his reputation 3. The power/influence of the parties: coercive power; e.g. NUPENG may withdraw their drivers causing dislocation Preparation • Identify the issues • Choose the strategy • Decide your BATNA - best alternative to negotiated agreement – your fallback or the bottom-line; the least point at which the party walks way; develop the BATNA with your client Comment [C7]: to give focus and direction to the negotiation 7 of 310 • Parties and the balance of power between them • BATNA (Best Alternative To Negotiation Agreement) of both parties • Real interest of the parties • Obstacles and barriers to negotiation • Style and strategy to adopt Strategies adopted in negotiation 1. Co-operative/problem-solving strategy 2. Competitive/confrontational/positional 3. Collaborative/principled/problem-solving strategy. NB: The first two are the main strategies. Styles adopted in negotiation 1. Soft style---No litigation in view 2. Hard style---Hard to shift 3. Firm style---Most effective. In between the first and the second. No likelihood of litigation Tactics adopted in negotiation 1. Nibble/ piecemeal 2. Package deal 3. Putting price l 4. Leap frogging 5. Puff 6. Plea of lack of authority after negotiation and before commitment 7. Plea of limited authority 8. Flattery 9. Deadline: illustration – accident case we offer 1 million naira in full and final settlement. You have between now ns tomorrow 6pm to accept or it is withdrawn 10. Take it or leave it. Similar to deadline 11. Threats 12. Hit and run – selfish, concerned with the interest of the party deploying such tactic 13. Humour – can be used to “disarm” the opponent”. Useful in coop / problem solving strategy 14. Freeze out – tends to outwit opponent ech point, thereby making him not to be competent or know what to do about the issues 15. Overwhelming numerical strength 16. Control of agenda 17. Nibbling—buying time Roles of lawyers in negotiation • Advisers – see the pre action counselling certificate in the FCT rules • Legal experts and evaluators ast strategy Comment [C10]: Win- win • Something for every party • Concession easily made • Goodwill preserved Comment [C11]: 1.Win – lose • Winner takes all approach • Aggressive • Adversarial Comment [C12]: • Issues or matters are negotiated piecemeal • No wholesale litigation • Resolution of an issue before taking on another Comment [C13]: • Wholesome dealing • No agreement piecemeal unless all issues/ matters have been discussed Comment [C14]: • All aspects of negotiation will be undertaken before price is discussed • e.g. in the accident case , the issue of liability may be resolved before the monetary damages payable will be discussed Comment [C15]: • Jumping or leapfrogging from one issue to the other without a resolution • A style that displays panic • Used as a default position by a party that cannot hold its own in negotiation Comment [C16]: • Puffing up on BATNA • Deception on the actual BATNA • Can however backfire 8 of 310 • Direct negotiators • Drafting of settlement agreement Ethical matters in negotiation 1. Lawyer /client privilege – R19 (1)- (3) RPC 2. No direct negotiation/ compromise with a party who is represented by a lawyer – R 19(5) RPC 3. Where a party is not represented don’t mislead him; also don’t undertake to advise him as to the law – R . 19(6) RPC 4. Duty of disclosure of the lawyers interest - such interests may be financial, proprietary, business, or personal – R 17 (1) – (3) RPC 5. Duty of dedication and devotion of attention, energy and expertise. R 14 (1) RPC - Keep client informed of the progress of the negotiation - Advise him as to the BATNA and WATNA - Draft the agreement and ensure the execution thereof; - Take all the steps necessary for the process of making the agreement the court judgment - If the negotiation is in the course of a court action ensure the terms of settlement are drafted and adopted as the judgment of the court. 6. Instructions and briefing should not be at the clients residence or place of business – R 22 7. Duty to promptly deliver to the client any money paid or property received as a result of the negotiation – r 23(2) , see also r 23(1) RPC 8. No threat of false or non-existent evidence 9. No unnecessary threats e.g. to get the information obtained out on the social media or even to the relevant law enforcement agencies 10. No misrepresentation / false information 11. Duty of representation with competence – RPC 16 • Conciliation: Conciliation is governed by ACA. This also involves a neutral third party. He merely suggests solutions to the parties. The suggestions of a conciliator are not binding on the parties. The conciliator comes up with an opinion which is reduced to terms of settlement for parties to sign which is at the discretion of the parties. • Hybrid • Early Neutral Evaluation: The parties or their attorneys summarize the conflict for a neutral third party to give a non-binding opinion or the settlement value of the case. It may come with a non-binding prediction of the likely outcome of the case if adjudicated upon. Used in international commercial transactions. Example: In a dispute between Chevron and Shell, a petrochemical Engineer comes as an early neutral evaluator to evaluate the strength and weaknesses of the case. The parties then decide whether to go on with litigation or resolve amicably. • Mini Trial: A settlement process in which the parties present a highly summarized version of their claims to a panel of officials who represent each party and who have authority to settle the dispute. The panel at the mini trial is mainly composed of top level 9 of 310 executives and senior managers who are in a position to take decision as regards the dispute. Thus, it has been described as “Supervised Settlement Procedure” or “Executive Tribunal” or “Executive Appraisal” This method blends formal legal advocacy procedure with elements of information management, neutral facilitation and case evaluation. This is a form of non-binding evaluative mediation as it assists the parties obtain a better understanding of the issues and enable them enter into settlement negotiation on a more informal basis. • Expert Determination: This is a voluntary process in which a neutral third party who is an expert in the field in which the dispute arose, gives a binding decision on the issues in dispute. Unlike an arbitrator, the expert has no obligation to act judicially, although he must act fairly. The decision of an expert here is generally challengeable on very limited grounds. • Rent a Judge: This is a process whereby the court, on request by the parties, refer a pending suit to a private neutral party for trial with the same effect as though the case were tried in the courtroom before a judge. The decision arising out of the process may be appealed against through the regular court appellate system. This process is common in USA where the legislature has also recognized the process. Aims of ADR 1. To reduce delays, cost and court’s congestion. 2. Enhances community participation in the dispute resolution process 3. Facilitate access to justice 4. To provide more effective means of dispute resolution Advantages of ADR are as follows: 1. It saves time 2. Saves relative cost (but this may not be true of Arbitration) 3. Promotion of good cordial relationship 4. It is litigant friendly as no much legal technicalities are needed 5. De-congests the Court of cases 6. Promotion of confidentiality of parties matters 7. Promotes community or parties participation in the dispute Resolution process 8. Enforcement of Resolution by the parties is easier 9. It encourages the use of experts on an aspect of Law, e.g. admiralty, etc unlike the Courts 10. The parties have absolute control over the proceedings without adhering to strict legal rules Disadvantages of ADR 1. Parties can easily re-open the matter except in Arbitration 2. Does not create precedents 3. It does not generate revenue for the State 4. Its application is limited in some cases 5. Decisions are not binding on the parties like judicial judgments 10 of 310 Limitations of ADR ---D2I2CE2 ADR mechanisms are not applicable to the following matters: 1. Declaration of rights 2. Divorce or nullity of marriage as regards to declaration of status 3. Injunction restraining an immediate act 4. Interpretation of statutes or the Constitution 5. Capital offences which are not compoundable 6. Election petition 7. Enforcement of fundamental rights MULTI-DOOR COURT HOUSE The first multi-door court house in Nigeria – the Lagos multi-door courthouse was established in Lagos in 2002, being a public-private partnership project between the High Court of Lagos state and a non-profit organization, the negotiation and conflict management group (The NCMG) Legal backing was provided through the enactment of the Lagos Multi Door Courthouse Law 2007. SEE also ORDER 28 LAGOS 2019. Several jurisdictions have replicated the idea. Thus for example there is now the Abuja multi-door courthouse. SEE ORDER 19 ABUJA 2018 Court connected, although nothing stops parties approaching the MDCH of their own volition. Independent, non-profit corporate body, with perpetual succession Overriding objectives are listed in S. 2 LMDCHL 1. Enhancement of access to justice by the provision of alternative mechanism to supplement litigation 2. To minimize frustration on the part of citizens by preventing delays and providing a standard legal framework for fair + efficient ADR solutions 3. Envisaged as a focal point for the promotion of ADR in Lagos state 4. Dedicated to the promotion, growth and effective functioning of the justice system through the ADR methods Note ORDER 19 RULE 7 ABUJA 2018 has provision for making ADR a consent judgment Any agreement or memorandum of understanding duly signed by the parties after mediation or other processes provided by the centre shall be filed at the LMDC and duly registered with all the necessary attachments---S. 4(2) LMDCHL Such settlement shall be caused by the centre to be endorsed by an ADR judge or any other person authorized by the CJ of Lagos State. Such endorsement shall qualify the agreement as a consent judgment of the High Court of Lagos and for the enforcement of any settlement agreement under the SCPA or other similar legislation---S. 4(1)(b) LMDCHL An agreement over a matter referred by a judge of the High Court should be endorsed by the same judge (Referral Judge)---S. 19(1) LMDCHL 11 of 310