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#19712 - 1. Bpc Civil Litigation 2 023 2024 Introductory Content - BPC Civil Litigation

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1. CIVIL LITIGATION 2023-2024: INTRODUCTORY CONTENT

READING REFERENCE KEY POINTS
The Overriding Objective

  • The overriding objective of the CPR is to enable the court to deal with cases justly and at a proportionate cost.

    • Parties are required to help the court to further the overriding objective.

    • The court must further the overriding objective by actively managing cases: encouraging cooperation, discouraging unreasonable conduct, using costs as an incentive, and encouraging ADR.

    • This applies to all litigants.

  • It aims to ensure the equality of arms, and an appellate or reviewing court will set aside a decision affected by bias.
Considering ADR

  • Courts should provide support for the use of ADR through case management and sanctions. But it is not compulsory.

  • Benefits of ADR:

  • Lower costs

  • Speed of settlement

  • Choice of forum

  • Control of process

  • Flexibility of process

  • Confidentiality

  • Wider range of outcomes may be considered

  • Shared future interests may be protected

  • Use of a problem-solving approach

  • Risk management

  • When considering ADR, to choose the most appropriate form think about:

  • How important is it to minimise costs?

  • How important is fast resolution?

  • How much control does the party want?

  • Would the view of an expert be important to key issues?

  • Would neutral assistance be valuable?

  • What are the main objectives of the party?

  • Is the future relationship important?

  • If there is likely to be an ongoing relationship between the parties, non-adjudicative ADR is best.

  • ADR may not be appropriate where:

  • There is need for precedent

  • The importance of a court order

  • The relevance of interim orders

  • Evidential rules are importance

  • Time limits for starting proceedings

  • Legitimate concern that the other side would commence proceedings in another jurisdiction

  • The complexity of the case

  • High levels of animosity

  • Power imbalance

  • Quasi-criminal allegations

  • Having a day in court

  • Enforcement may be an issue

  • Telling the other party would defeat the purpose (e.g freezing order)

  • The strength of the case
Role of Lawyer in ADR

  • Furthering the overriding objective includes considering ADR

  • Main elements of the role of the lawyer:

  • Ensuring that the client is aware of ADR

  • Providing information relevant to ADR options

  • Advising on pre-action obligations

  • Advising on overriding objective

  • Ensuring client is aware of penalties

  • Give appropriate advice on funding and costs

  • Getting clear instruction on the form of ADR

  • Objective reasons for not selecting ADR

  • Assisting in selecting independent third parties

  • Advising on strengths and weaknesses of case

  • Considering and advising offers

  • Advising on and drafting terms of settlement

  • The lawyer should only reach a final agreement if so authorised by the client
Halsey

  • The court cannot compel parties to use ADR

    • Unreasonable refusal to consider = court has the power to deprive the winning party of some or all their costs

    • Silence in the face of ADR is unreasonable

  • But it can direct the parties to consider ADR at a case management conference or pre-trial review.

  • Parties can choose to stay for one month to try to settle or say why they cannot do this. If a stay is granted, the parties must keep the court informed.

  • If a party believes they have reasonable grounds for refusing to engage with ADR they must respond to the offer promptly, in writing, giving full reasons.
Timing the use of ADR

  • Advance commitment in a...
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