Вы находитесь на странице: 1из 3

ADR: REVISION TOPIC 1: ADR & THE COURTS

Objectives:

Under Historical Background

 

Definition of “ADR”

Court Recognition of ADR

Approach of Civil Procedure Rules (“CPR”) to ADR

 

Judicial Encouragement of ADR

Sanctions for Refusing ADR

 

HISTORICAL BACKGROUND TO ADR

   

1998

1998 – former procedural rules (CCR – County Court Rules and RSC – Rules of Supreme Court for High Court Cases) acknowledged ADR as potentially relevant to all civil actions

Positively encouraged ADR at pre-action stage and after litigation commenced

Some Courts issued practice notes advocating use of ADR

 

1999

– CPR (via Woolf Reforms)

CPR came into force in April 1999

Put ADR at centre of justice system for civil cases

Ethos: Litigation as last resort

Contained rules encouraging ADR

Since CPR came into force – ADR has developed, esp. mediation, ENE and ED.

2009

– Jackson Review

L.J Jackson, 'Review of Civil Litigation Costs' (issued: December 2009)

Recommendation 6.3 – ADR has a vital role to play.

Should be serious campaign to ensure that all litigation lawyers properly informed about how ADR works and its benefits

Government Position

Main proposals accepted by Government in March 2011

Government policy showing increasing support for ADR – belief that; “Access to justice for all parties depends on costs being proportionate and unnecessary cases being deterred.”

March 2012: Proposal that all Small Claims be referred to mediation (though not compulsory they are resolved by mediation)

Package of reforms likely to be implemented in April 2013:

Legal Aid, Sentencing and Punishment of Offenders Act 2012, Part 2, and

Amendments to CPR

Growth of ADR Options

First Statute: Arbitration Act 1697

First tribunal to adjudicate disputes – Set up under National Insurance Act 1911

1975 – 'Advisory, Conciliation and Arbitration Service' (ACAS) set up

Government funded

Independent, focus on supporting employment relationships

1990 – 'Centre for Effective Dispute Resolution' (CEDR) launched with support of the Confederation of British Industry.

WHAT IS “ADR”?
WHAT IS “ADR”?

WHAT IS “ADR”?

WHAT IS “ADR”?
WHAT IS “ADR”?
WHAT IS “ADR”?

“ADR” does not have an agreed definition

Taken to cover alternatives to litigation where:

There is a dispute between 2+ parties

Dispute relates to civil rights and/or duties

Dispute could potentially go to court for resolution

Dispute resolved through another process with a more flexible structure

Process is essentially confidential,

Process involves individuals other than parties, who add some degree of objectivity (lawyers and/or independent/neutral third party)

Disadvantages of Litigation

Civil procedure rules are complex – can extend time and costs of resolving dispute

Extensive rules of evidence and disclosure – may be burdensome where wide-range of relevant documents or client concerned about confidentiality

Objective of Courts to develop law through precedent – individual may not want to go to COA or Supreme Court to resolve issue of law.

Adversarial system – not in parties' interests if ongoing relationship

Detailed Court procedures – may not be appropriate where case turns on single technical issue

Judge controlled – may not suit clients who wish to have control over outcome

Past-focussed – may be better to take wider contextual view of dispute, or focus on future.

Powers to Order – may be in client's interests to have wider-range of settlement options embracing agreements which court cannot order.

COURT RECOGNITION OF ADR
COURT RECOGNITION OF ADR

COURT RECOGNITION OF ADR

COURT RECOGNITION OF ADR
COURT RECOGNITION OF ADR
COURT RECOGNITION OF ADR

Growth in Court's Recognition of & Support for ADR

Use of offers to settle encouraged in

Calderbank v Calderbank [1976]

Written offer to settle could be brought to attention of judge when considering costs

Formalised into Part 36 offers.

1994 – Commercial Court: 'Practice Note: Commercial Court; Alternative Dispute Resolution'

Requires lawyers to consider ADR with their clients

1995 – High Court: 'Practice Note: Civil Litigation; Case Management'

Mainly provided for greater judicial control over cases

Included questions on whether lawyers discussed ADR with client and other party.

1997 – Voluntary Mediation Scheme attached to COA

March 2012 – Announced pilot scheme – All COA cases to be referred to mediation unless judge ordered otherwise.

1998 – Woolf Reforms – CPR

Encouragement of ADR built into WR, then expressly and impliedly into CPR

CPR expressly encourages ADR prior to litigation

r44.5 – Determining whether proceedings issued prematurely (for costs) – have parties considered/used ADR?

Pre-Action Protocols (amended in 2003) – Letter before claim should state if party wishes to enter mediation or other form of ADR

2007 – Use of ADR standardised in County Courts

2008 – Full-time mediation officer in each area

Provides common and subsidised mediation procedure,

Supported by National Mediation Helpline and CMC (since 2011)

ENCOURAGEMENT OF ADR
ENCOURAGEMENT OF ADR

ENCOURAGEMENT OF ADR

ENCOURAGEMENT OF ADR
ENCOURAGEMENT OF ADR
ENCOURAGEMENT OF ADR

Sources of Encouragement

Court Guides

Pre-Action Protocols

Court's inquiry about parties' use/consideration of ADR at Track-Allocation Stage

Court willingness to grant a stay for consideration/use of ADR

Judicial encouragement of ADR developed through case-law

Willingness of courts to uphold/enforce ADR clauses in contracts

CPR – The Overriding Objective

r1.1 (Overriding Objective) – Inc. saving time and expense, and proportionality in dealing with cases.

Judges required to further Overriding objective in active case-management

r1.3 – Parties and lawyers under duty to assist court in furthering Overriding objective

r1.4(1)(a),(e),(f) -

Judges should encourage parties to co-operate by using ADR

Court should facilitate use of ADR (eg. stays, extensions of time)

Judges should help parties settle “whole or part of case”

Case Management Orers can direct parties to consider ADR and give reasons for failing to use it.

r1.4(2) – Active case-management includes:

Encouraging parties to use ADR if court considers it appropriate and facilitating its use

Helping parties to settle whole/part of case

Stages when ADR should be Considered

1. Pre-Issue

To save time and costs of litigation

Disadvantages:

Issues not yet clearly defined

Merits and quantum not easily assessed

2. Track-Allocation

Each side's case has been defined in statements of case

Disadvantages:

Disclosure not yet taken place, so difficult for accurate assessment of merits

3. After Disclosure

Accurate evaluation of case by both sides

Disadvantages:

Large amount of time and costs all ready incurred

Court Guides

Admiralty & Commercial Courts Section G

G1.4 – Encourages parties to consider ADR, requires lawyers to consider ADR with clients and other parties as means to resolving dispute/issues within it.

G1.7 – Parties can apply for court directions on ADR at any stage (including before serving defence or before case management conference)

Case Management Sheet – Q: Would parties like an ADR Order (Appendix 7) – If court