Notes & Practice on Dispute Resolution

Q: What is negotiation?

Negotiation is a process of discussing and reaching an agreement between parties involved in a dispute. It can occur over the phone or through face-to-face meetings. Negotiations are conducted on a “without prejudice” basis to ensure that the discussions are protected and cannot be used as evidence in future court proceedings. This allows parties to have open and honest conversations without the fear of their statements being used against them later.

Q: What happens during the negotiation process?

During negotiation, parties may take breaks to have private discussions with their legal team. This allows them to present their case and understand the strengths and weaknesses of the opponent’s case. Negotiations are often the initial step in resolving a dispute before resorting to alternative forms of Alternative Dispute Resolution (ADR).

Q: What is mediation and when does it occur?

Mediation is a confidential process used to resolve disputes. It can occur at any time before or during litigation and is usually arranged on short notice. Mediation is conducted on a “without prejudice” basis and remains non-binding until a final written agreement is signed by both parties. The parties have the right to walk away from mediation if a settlement is not reached. However, the court may consider the behavior and attitude of the parties during mediation.

Q: What are the advantages of mediation?

• Flexibility: Mediation can be used at any time and can be tailored to the parties’ specific requirements.
• Cost and time savings: If a resolution is reached through mediation, it can save costs and time compared to lengthy litigation processes.
• Focus on problem-solving: Mediation aims to solve problems rather than find fault, allowing parties to work together towards a mutually beneficial outcome.
• Opportunity for parties to be heard: Mediation gives clients the chance to present their case and understand the strengths and weaknesses of each party’s position.
• Clarity and information sharing: All parties hear the same information, and the mediator helps define and clarify facts and issues that may have become masked by ancillary matters.
• Unearthing underlying problems: Mediation requires the mediator to dig deeper into the root of the problem, which may have been obscured by other issues.

Q: What is conciliation and how does it differ from mediation?

Conciliation is a dispute resolution technique similar to mediation. It involves a neutral third-party intermediary who communicates with the parties involved. However, a conciliator tends to be more hands-on and proactive, sometimes offering their own resolution proposals. Conciliation is often used in employment disputes, particularly through services like the Advisory, Conciliation, and Arbitration Service (ACAS).

Q: What is an Executive Tribunal and how does it work?

An Executive Tribunal is a method used to resolve commercial disputes. It consists of senior representatives from each involved party who have not directly participated in the dispute. Assisted by a neutral advisor, the panel evaluates the claims of both parties. Instead of making a binding determination, the panel negotiates a settlement based on commercial terms. If no agreement is reached, the independent advisor offers a non-binding advisory opinion to help resolve the dispute.

Q: What is Early Neutral Evaluation (ENE) and how does it benefit parties?

Early Neutral Evaluation involves a third party, such as an independent legal representative or a judge, assessing the issues and providing advice on the likely outcome. The evaluation by a respected independent arbiter may act as a catalyst for settlement or prompt parties to re-evaluate their cases. However, if a judge provides the evaluation, they will not determine the action if it proceeds to litigation.

Q: What is judicial or expert determination?

Judicial or expert determination is a dispute resolution process where the parties jointly instruct a senior judge, Queen’s Counsel (QC), or an expert witness to provide a written appraisal of the issues. The parties agree in advance on the form and extent of the instruction and whether the appraisal will be binding. The client must understand the instruction’s nature and extent, as it will ultimately determine the case. These decisions generally cannot be appealed but may be challenged on limited grounds if the expert departed from their instructions.

Q: What is arbitration?

Arbitration is a dispute resolution process where the parties present their case to an arbitrator or a panel of arbitrators for examination and decision. It differs from court litigation in terms of formality, as the parties have some control over the procedure. The arbitrator, who can be a solicitor, barrister, architect, or chartered surveyor, conducts the arbitration privately and aims to reach a final and binding decision called the “final award.” The process involves meetings, statements of case, written submissions, and documentary evidence. The award can be enforced in the High Court or set aside in limited circumstances.

Q: What are the disadvantages of arbitration?

The disadvantages of arbitration include its expense, which is similar to litigation, and the potential for it to be a lengthy process.

Q: What are the advantages of arbitration?

Having an expert arbitrator who understands the industry relevant to the contract can assist the parties. If there is a valid arbitration clause in the contract, the client may have no option but to arbitrate. Additionally, if one party attempts litigation despite a valid arbitration clause, the opponent can usually apply to the High Court to stay the proceedings and enforce arbitration.

Q: What is adjudication?

Adjudication is a process used to resolve building and construction disputes. It can be initiated by a contractual term, agreement between the parties, or by the provisions of relevant legislation. The process involves serving a notice of intention to proceed to adjudication, nominating an adjudicator, and submitting written submissions. Adjudication must be completed within strict time limits, usually within 28 days. The adjudicator’s decision is binding on an interim basis and can be appealed in the High Court. The issues determined in adjudication can be re-litigated through arbitration or court proceedings.

Allocation refers to the process of assigning or categorizing a legal claim to a specific “track” in the court system for effective management. In civil claims, the court makes a provisional allocation early on in the process based on its assessment of the most suitable track for the claim. The appropriate track depends on various factors, such as the claim’s value. The three tracks commonly used in civil claims are the small claims track, fast track, and multi-track, as defined by CPR 26.1(2).

The tracks

Q1: What types of cases are allocated to the small claims track?

• Personal injury cases which have a financial value of not more than £10,000, where the claim for damages for personal injuries is not more than that specified in CPR 26.6(1):

(aa) £5,000 in a claim for personal injuries arising from a road traffic accident (except as provided in (bb));
(bb) £1,000 in a claim for personal injuries arising from a road traffic accident in any of the circumstances specified in rule 26.6A; or
(cc) £1,500 in any other claim for personal injuries.

• Claims by a residential tenant against his landlord for repairs or other work to the premises, with an upper limit of £1,000 in value of those repairs and an upper limit of damages;

• Claims against landlords for harassment or unlawful eviction relating to residential premises will not be allocated to the small claims track whatever the financial value.

Q: Are claims for harassment or unlawful eviction by tenants against landlords included in the small claims track?

No, claims for harassment or unlawful eviction relating to residential premises are not allocated to the small claims track, regardless of their financial value.

Q: Can parties appeal a small claim judgment if they are dissatisfied with the decision?

Yes, if any other party is dissatisfied with the small claim judgment, they may consider appealing the decision based on available grounds.

Q: What are the criteria for a case to be considered for the fast track?

The fast track is applicable to cases that meet the following criteria:

(1) They are not eligible for the small claims track;

(2) They have a monetary value up to £25,000;

(3) They have no monetary value but involve claims such as injunctions, specific performance, or declarations that are deemed suitable for this track and don’t require the complexity of the multi-track

(4) They are any other cases, regardless of monetary value, that the court considers suitable for the fast track at the parties’ or court’s discretion;

(5) The estimated trial length is no longer than one day; and

(6) Expert oral evidence is limited to two fields, with only one expert per party in each field.

Q: What steps should parties take upon receipt of a case likely to be allocated to the fast track?

Upon receiving a case that is likely to be assigned to the fast track, the court will issue a Notice of Intended Allocation in Form N149B (FT). The parties involved in the case should consider the following aspects of the fast track process:

(1) Decide whether to accept allocation to the fast track and complete the DQ Form N181, filing a copy with the court and serving it on all parties;

(2) Expert evidence will be restricted, and parties must provide justification and cost estimates if seeking expert evidence;

(3) Evidence of fact will be limited, and witness statements may stand as evidence-in-chief to avoid examination-in-chief at trial;

(4) Requests for further information will be controlled, with tight response time limits;

(5) Filing standardized pre-trial checklists, with a refund of the hearing fee if a settlement is reached at least 21 days before the trial date;

(6) Standardized trial bundles and possible case summaries for each party;

(7) Simple trial timetables setting time limits for evidence and closing submissions, and in some cases, more complex trial timetables with a five-hour trial including judgment and summary assessment of costs;

(8) Submission of costs schedules before the trial, with costs assessed summarily by the judge at the end of the trial;

(9) The trial will be heard by a District or Circuit Judge.

Q: What types of cases are allocated to the multi-track?

Cases allocated to the multi-track are those that have a value over £25,000, cases with a value of less than £25,000 but a trial lasting more than one day, and complex or important cases of any value.

Q: Can cases in the multi-track be issued in both the County Court and the High Court?

Yes, cases in the multi-track can be issued in either the County Court or the High Court.

Q: Are there any restrictions on starting proceedings in the High Court?

Yes, according to CPR 7A 2.1 and 2.2, proceedings (for damages or a specified sum) cannot be started in the High Court unless the claim value is over £100,000. Additionally, claims for damages related to personal injury cannot be started in the High Court unless the claim value is £50,000 or more.

Q: Is the financial value the only criterion for determining the suitability of a claim for the multi-track?

No, the financial value is not the sole criterion. Additional factors outlined in CPR 26.8 must be considered, such as the nature of the remedy sought, complexity of facts, law or evidence, number of parties involved, value and complexity of counterclaims, amount of oral evidence, importance of the claim to non-parties, parties’ views (though not binding), and circumstances of the parties.

Are all eligible multi-track cases tried in the High Court?

No, the court has discretion to consider other factors when deciding the allocation of a case. Even if a case meets the financial requirement for multi-track allocation, it may be transferred to a fast-track judge if the complexity of the case doesn’t require a multi-track judge. Lower-value cases (£100,000 or lower) are typically tried in the local County Court Hearing Centre.

What types of cases are likely to stay and be tried in the High Court or District Registry?

Cases of high financial value (exceeding £100,000), cases involving public importance, test cases, clinical negligence cases, and cases with a right to trial by jury (including deceit cases) are likely to stay and be tried in the High Court or District Registry.

Can parties choose the directions they seek in the multi-track?

Yes, parties in the multi-track are expected to consult with each other and choose the directions they seek from standardised directions available online, using a ‘menu’ approach.

How are cases managed in the multi-track?

Judicial case management in the multi-track is tight, and decisions reflect the range of claims in this track. More complex cases may require multiple case management conferences and a pre-trial hearing, while lower-value and simpler cases follow similar directions to the fast-track.

Q: Are there any specific requirements for expert evidence in the multi-track?

The court exercises greater flexibility with expert evidence in the multi-track, allowing parties to have their own experts or experts in multiple fields. However, the principles of the Overriding Objective, including proportionality, still apply.

Stay tuned for more notes ………