CIVIL LITIGATION EXAM
SECTION A — 10 MCQ’S - 20 MARKS
SECTION B — 5 LONG FORM QUESTIONS - 80 MARKS
1 DRAFTING QUESTION - CAN EITHER BE REDRAFTING A WITNESS STATEMENT,
PARTICULARS OF CLAIM OR DEFENCE.
NOTE GUIDE:
1: Section 1 — Pre-action considerations
2: Section 2 — Commencement of proceedings and statements of case
3: Section 3 — Allocation and case management
4: Section 4 — Evidence
5: Section 5 — Interim applications, trial and Part 36 Offers
6: Section 6 — Enforcement and appeals
7: Section 7 — Drafting
, 1 SECTION 1 — PRE-ACTION CONSIDERATIONS
METHODS OF RESOLVING DISPUTES — ARBITRATION & ALTERNATIVE
DISPUTE RESOLUTION (“ADR”)
Comparing TYPESS of ADR:
LEGALLY
METHOD OF ADR BINDING WHAT DOES IT INVOLVE?
DECISION?
Early Neutral NO An independent and neutral evaluator, often a QC
Evaluation (ENE) or a retired judge meets with the parties early on
to give a non-binding and confidential
assessment of the dispute. Helpful in promoting
settlement discussions.
Expert YES An independent expert on the subject matter is
Determination appointed by the parties. It is an inquisitorial
process which will result in a binding
determination. Rights of appeal are limited. The
procedure is determined by the contract between
the parties. It is suitable for technical matters,
but not for full hearings where credibility needs to
be tested and there are legal issues in dispute as
well as factual issues.
Expert appraisal NO Expert appraisal is where an independent expert
on the subject matter is appointed by the parties.
The expert will either be agreed on by the parties,
or will be appointed by their nominee(s). The
expert will provide a non-binding assessment of
the matter(s) referred to it. The parties will have to
pay the expert for its time and costs.
,MEDIATION
Mediation is the process by which a neutral third party, the mediator, assists the parties in
reaching a negotiated settlement. The whole process is subject to ‘without prejudice’
privilege. Any substantive discussion in mediation cannot therefore be referred to in
litigation or arbitration proceedings.
Exam question - What are the advantages OR disadvantages of using meditation in a
particular scenario over litigation ? - Always apply the advantages ad disadvantages to
the scenario
Advantages
• Cost — Assuming that a settlement is actually agreed, mediation is likely to be cheaper
than litigation. If a dispute instead proceeded to a full trial, the parties would expend a
considerable amount of management time and legal costs. Even a party successful at
trial, it will not recover 100% of its legal costs — such costs will generally be subject to a
detailed assessment and will be assessed on the standard or indemnity basis (see CPR
44.4). Early settlement of the claim therefore avoids the need for such costs to be
incurred in the first place, thereby avoiding any shortfall in recovery.
• Speed — Mediation is likely to be quicker than litigation (assuming that a settlement is
actually reached). If the parties to a dispute are commercial enterprises they would
prefer for a matter to be resolved quickly so that they could focus on their business
interests.
• Flexibility/informality of process — The settlement discussions can be tailored towards
the client’s individual needs and are not constrained by the limits of the court’s authority.
The parties play an active role in the whole mediation process as there is a greater
opportunity to get involved in the process and have their say. They accordingly have
'ownership' of the mediation (as contrasted with litigation, where the process is much
more formal and rigid).
• A mediation is generally non-adversarial — This is very unlike litigation. As such,
mediation is generally perceived as being conducive to continuing commercial/business
relations between the parties; the mediation is predicated on the parties finding
common ground and narrowing the issues in dispute — The focus of the mediation
process is upon the interests of the parties rather than their legal rights alone. Thus,
factors such as business relationships, reputational issues or personal emotions can be
taken into account as necessary. This means that the process can assist the parties in
maintaining a commercial relationship.
• Satisfactory solutions — A successful mediation will generally result in a solution which
all parties are satisfied with. Contrast this with litigation, where the court's judgment is
likely to result in a 'successful' party and an 'unsuccessful' party — either the claimant or
the defendant is likely to be satisfied / dissatisfied with the ruling.
, • Creative solutions — Mediation enables the parties to reach a commercial (as opposed
to a legally correct) solution. This provides greater flexibility to the parties and enables
them to agree settlement terms which go beyond those which a judge could order.
• Finality — The outcome of a mediation can't be 'appealed' as such; the idea is that
both parties will be happy with the outcome, so won’t want to. There might therefore
be finality (if a settlements is actually reached).
• Confidentiality — The whole mediation process is subject to ‘without prejudice’
privilege. Any substantive discussion in mediation cannot therefore be referred to in
litigation or arbitration proceedings. Contrast this with civil trials, where unless an order
is made to the contrary, trials are heard in open court (see CPR 39.2). Judgments are
often also reported. This is an important factor as commercial enterprises are usually
concerned about adverse publicity.
• Possibility of expert knowledge to facilitate settlements — Whilst it is not strictly
necessary, a mediator might be an expert in a field which is pertinent to parties. [Bear in
mind that mediators are used to facilitate negotiated settlements; they do not deliver
binding decisions nor do they usually proffer opinions on merits etc, some industry
knowledge might, however, facilitate discussions.]
• Partial settlement — Even if the mediation had not been entirely successful, the parties
will have `reality tested' their arguments, potentially narrowed the issues in dispute and/
or reached a partial settlement. Further, the courts actively encourage ADR. If the
parties do not reasonably attempt to mediate (or consider some other form of ADR),
there may be adverse cost consequences pursuant to CPR 44.2(5) if the matter
proceeds to trial.
Disadvantages
• Cost / speed — Mediation can simply increase costs and delay the resolution of the
dispute if no settlement is agreed. In this regard:
• It is likely that the parties would have shared the costs of the mediator;
• Assuming that the mediation occurred at a 'neutral' location, the parties are
also likely to have shared those costs;
• The parties' lawyers would have incurred fees in preparing for and attending
the mediation;
• Both parties would have expended management time preparing for and
attending the mediation.
• A solution is not imposed by the mediator — the mediator instead 'facilitates' a
settlement. On this basis, a solution is not guaranteed. Conversely, any claim going to
trial will result in a binding judgment being delivered.
SECTION A — 10 MCQ’S - 20 MARKS
SECTION B — 5 LONG FORM QUESTIONS - 80 MARKS
1 DRAFTING QUESTION - CAN EITHER BE REDRAFTING A WITNESS STATEMENT,
PARTICULARS OF CLAIM OR DEFENCE.
NOTE GUIDE:
1: Section 1 — Pre-action considerations
2: Section 2 — Commencement of proceedings and statements of case
3: Section 3 — Allocation and case management
4: Section 4 — Evidence
5: Section 5 — Interim applications, trial and Part 36 Offers
6: Section 6 — Enforcement and appeals
7: Section 7 — Drafting
, 1 SECTION 1 — PRE-ACTION CONSIDERATIONS
METHODS OF RESOLVING DISPUTES — ARBITRATION & ALTERNATIVE
DISPUTE RESOLUTION (“ADR”)
Comparing TYPESS of ADR:
LEGALLY
METHOD OF ADR BINDING WHAT DOES IT INVOLVE?
DECISION?
Early Neutral NO An independent and neutral evaluator, often a QC
Evaluation (ENE) or a retired judge meets with the parties early on
to give a non-binding and confidential
assessment of the dispute. Helpful in promoting
settlement discussions.
Expert YES An independent expert on the subject matter is
Determination appointed by the parties. It is an inquisitorial
process which will result in a binding
determination. Rights of appeal are limited. The
procedure is determined by the contract between
the parties. It is suitable for technical matters,
but not for full hearings where credibility needs to
be tested and there are legal issues in dispute as
well as factual issues.
Expert appraisal NO Expert appraisal is where an independent expert
on the subject matter is appointed by the parties.
The expert will either be agreed on by the parties,
or will be appointed by their nominee(s). The
expert will provide a non-binding assessment of
the matter(s) referred to it. The parties will have to
pay the expert for its time and costs.
,MEDIATION
Mediation is the process by which a neutral third party, the mediator, assists the parties in
reaching a negotiated settlement. The whole process is subject to ‘without prejudice’
privilege. Any substantive discussion in mediation cannot therefore be referred to in
litigation or arbitration proceedings.
Exam question - What are the advantages OR disadvantages of using meditation in a
particular scenario over litigation ? - Always apply the advantages ad disadvantages to
the scenario
Advantages
• Cost — Assuming that a settlement is actually agreed, mediation is likely to be cheaper
than litigation. If a dispute instead proceeded to a full trial, the parties would expend a
considerable amount of management time and legal costs. Even a party successful at
trial, it will not recover 100% of its legal costs — such costs will generally be subject to a
detailed assessment and will be assessed on the standard or indemnity basis (see CPR
44.4). Early settlement of the claim therefore avoids the need for such costs to be
incurred in the first place, thereby avoiding any shortfall in recovery.
• Speed — Mediation is likely to be quicker than litigation (assuming that a settlement is
actually reached). If the parties to a dispute are commercial enterprises they would
prefer for a matter to be resolved quickly so that they could focus on their business
interests.
• Flexibility/informality of process — The settlement discussions can be tailored towards
the client’s individual needs and are not constrained by the limits of the court’s authority.
The parties play an active role in the whole mediation process as there is a greater
opportunity to get involved in the process and have their say. They accordingly have
'ownership' of the mediation (as contrasted with litigation, where the process is much
more formal and rigid).
• A mediation is generally non-adversarial — This is very unlike litigation. As such,
mediation is generally perceived as being conducive to continuing commercial/business
relations between the parties; the mediation is predicated on the parties finding
common ground and narrowing the issues in dispute — The focus of the mediation
process is upon the interests of the parties rather than their legal rights alone. Thus,
factors such as business relationships, reputational issues or personal emotions can be
taken into account as necessary. This means that the process can assist the parties in
maintaining a commercial relationship.
• Satisfactory solutions — A successful mediation will generally result in a solution which
all parties are satisfied with. Contrast this with litigation, where the court's judgment is
likely to result in a 'successful' party and an 'unsuccessful' party — either the claimant or
the defendant is likely to be satisfied / dissatisfied with the ruling.
, • Creative solutions — Mediation enables the parties to reach a commercial (as opposed
to a legally correct) solution. This provides greater flexibility to the parties and enables
them to agree settlement terms which go beyond those which a judge could order.
• Finality — The outcome of a mediation can't be 'appealed' as such; the idea is that
both parties will be happy with the outcome, so won’t want to. There might therefore
be finality (if a settlements is actually reached).
• Confidentiality — The whole mediation process is subject to ‘without prejudice’
privilege. Any substantive discussion in mediation cannot therefore be referred to in
litigation or arbitration proceedings. Contrast this with civil trials, where unless an order
is made to the contrary, trials are heard in open court (see CPR 39.2). Judgments are
often also reported. This is an important factor as commercial enterprises are usually
concerned about adverse publicity.
• Possibility of expert knowledge to facilitate settlements — Whilst it is not strictly
necessary, a mediator might be an expert in a field which is pertinent to parties. [Bear in
mind that mediators are used to facilitate negotiated settlements; they do not deliver
binding decisions nor do they usually proffer opinions on merits etc, some industry
knowledge might, however, facilitate discussions.]
• Partial settlement — Even if the mediation had not been entirely successful, the parties
will have `reality tested' their arguments, potentially narrowed the issues in dispute and/
or reached a partial settlement. Further, the courts actively encourage ADR. If the
parties do not reasonably attempt to mediate (or consider some other form of ADR),
there may be adverse cost consequences pursuant to CPR 44.2(5) if the matter
proceeds to trial.
Disadvantages
• Cost / speed — Mediation can simply increase costs and delay the resolution of the
dispute if no settlement is agreed. In this regard:
• It is likely that the parties would have shared the costs of the mediator;
• Assuming that the mediation occurred at a 'neutral' location, the parties are
also likely to have shared those costs;
• The parties' lawyers would have incurred fees in preparing for and attending
the mediation;
• Both parties would have expended management time preparing for and
attending the mediation.
• A solution is not imposed by the mediator — the mediator instead 'facilitates' a
settlement. On this basis, a solution is not guaranteed. Conversely, any claim going to
trial will result in a binding judgment being delivered.
