This chapter discusses active case management and the use of sanctions. The Woolf reforms and more recently the Jackson reforms have supported the concept of active case management, the focus of which is to ensure that cases are dealt with ‘justly’ and ‘at proportionate cost’. The objectives of case management are set out in Civil Procedure Rules (CPR) Part 1 and the courts case management powers are in CPR Part 3. The powers of the court in relation to case management are wide and directions given after the issue of proceedings should provide a framework and timetable for dealing with a case right up to trial. The final section of the chapter deals with the sanctions that might be imposed where there is a failure to comply with case management requirements.
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This chapter discusses the rules for additional claims under Part 20 of the Civil Procedure Rules 1998 (CPR). An additional claim typically will seek to pass any liability established against the defendant to a third party. This is achieved by seeking indemnities, contributions, or related remedies against the third party. A third party may in turn seek to pass on its liability to a fourth party, and so on. Permission to issue an additional claim is not required if the additional claim is issued before or at the same time as the defendant files its defence. An additional claim operates as a separate claim within the original claim.
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This chapter discusses the rules for additional claims under Part 20 of the Civil Procedure Rules 1998 (CPR). An additional claim typically will seek to pass any liability established against the defendant to a third party. This is achieved by seeking indemnities, contributions, or related remedies against the third party. A third party may in turn seek to pass on its liability to a fourth party, and so on. Permission to issue an additional claim is not required if the additional claim is issued before or at the same time as the defendant files its defence. An additional claim operates as a separate claim within the original claim.
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This chapter discusses the rules relating to the proof of admissions and documents at trial. It covers the nature of admissions; pre-action admissions of liability; permission to withdraw an admission; notice to admit facts; and proving documents.
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This chapter discusses the rules relating to the proof of admissions and documents at trial. It covers the nature of admissions; pre-action admissions of liability; permission to withdraw an admission; notice to admit facts; and proving documents.
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In recent years alternative dispute resolution (ADR) has evolved from being a fallback in relation to litigation into an important alternative that may be the preferred option in some cases. This chapter outlines the interface between litigation and ADR, and puts litigation into the context of settlement options. ADR is only a complete alternative to litigation where a full adjudicative option such as arbitration or expert determination is used. In most disputes it is more likely that a case will move between litigation and ADR processes, or be subject to both at the same time where an offer has been made and remains open, but the litigation process continues. The chapter discusses the main types of ADR and their fit with litigation; framing an attempt to settle; drawing up terms of settlement; and making Part 36 offers, especially when costs are a major concern in litigation.
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Advocacy involves the presentation to a judge of two competing versions of the facts, of the law, or both. This chapter discusses the skills of solicitor advocacy. It focuses on identifying key principles of the ethics of advocacy; understanding the structure of a case presented for trial; developing a case presentation strategy incorporating the client’s goals; making an effective submission; and planning an examination-in-chief and cross-examination using appropriate questions.
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This chapter deals with the methods by which the Civil Procedure Rules (CPR) encourage parties to settle their disputes at an early stage and, ultimately, without proceeding to trial. It also looks at the methods of dispute resolution that may be available. The chapter includes a detailed look at the most common dispute resolution methods. Further, it covers the different types of alternative dispute resolution (ADR); the integration of ADR into the CPR; the philosophy of ADR; and a detailed look at mediation.
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Alternative dispute resolution (ADR), particularly mediation, plays a key role in reducing the costs of civil disputes by fomenting the early settlement of cases. This chapter discusses ADR processes; advantages or disadvantages of ADR and litigation; the cost of ADR; reference to ADR; and court involvement in ADR. Adjudicative ADR results in the third party neutral deciding the dispute or difference between the parties. Non-adjudicative ADR processes involve moving the parties towards reaching a compromise agreement between themselves. Rules of court require parties to consider using ADR. Sanctions may be imposed on parties who act unreasonably.
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Alternative dispute resolution (ADR), particularly mediation, plays a key role in reducing the costs of civil disputes by fomenting the early settlement of cases. This chapter discusses ADR processes; advantages or disadvantages of ADR and litigation; the cost of ADR; reference to ADR; and court involvement in ADR. Adjudicative ADR results in the third party neutral deciding the dispute or difference between the parties. Non-adjudicative ADR processes involve moving the parties towards reaching a compromise agreement between themselves. Rules of court require parties to consider using ADR. Sanctions may be imposed on parties who act unreasonably.
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This chapter first discusses the methods by which a family lawyer may resolve family law disputes, including alternative dispute resolution (ADR). It then reviews the various forms of negotiation that a family lawyer may undertake. These include settlement between clients, negotiation through correspondence, meeting between counsel, and at-court negotiation. Next, the chapter discusses mediation and collaborative law as different forms of ADR used in family law. It outlines MIAMs (mediation information and assessment meetings) and their importance prior to issuing proceedings. It also discusses the various steps of collaborative law. It also briefly considers a recent development in family ADR: arbitration.
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Changes in the parties’ knowledge of a case as it progresses and straightforward drafting errors make it necessary on occasion to make amendments to the statements of case. This chapter discusses amendment by consent; amendment without permission; principles governing permission to amend; amendment after the expiry of the limitation period; and procedure on amending.
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Changes in the parties’ knowledge of a case as it progresses and straightforward drafting errors make it necessary on occasion to make amendments to the statements of case. This chapter discusses amendment by consent; amendment without permission; principles governing permission to amend; amendment after the expiry of the limitation period; and procedure on amending.
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This chapter considers the structure of non-family civil appeals. It covers routes of appeal; permission to appeal; time for appealing; procedure on appealing; respondent’s notice; applications within appeals stay; striking out appeal notices and setting aside or imposing conditions; hearing of appeals; appeal court’s powers; appeals by way of case stated; and appeals to the Supreme Court.
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Martin Hannibal and Lisa Mountford
This chapter explains the practice and procedure involved in appealing against a decision of the magistrates’ court or the Crown Court. The discussions include the reopening of a case; appeal to the Crown Court; appeal by way of case stated; judicial review; appeal against sentence from the Crown Court; appeal to the Supreme Court; the Criminal Cases Review Commission; and whether the prosecution enjoys a right to appeal.
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This chapter considers the structure of non-family civil appeals. It covers routes of appeal; permission to appeal; time for appealing; procedure on appealing; respondent’s notice; applications within appeals stay; striking out appeal notices and setting aside or imposing conditions; hearing of appeals; appeal court’s powers; appeals by way of case stated; and appeals to the Supreme Court.
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Clare Firth, Jennifer Seymour, Lucy Crompton, Helen Fox, Frances Seabridge, Jennifer Seymour, and Elizabeth Smart
This chapter discusses the law and procedure relating to the issue of a grant of representation to the personal representatives of someone who has died. It considers the nature, effect, and the principal types of grant; the position of the personal representatives; the responsibilities of solicitors instructed to act in the administration of an estate; obtaining the grant; the court’s requirements; the Probate Application; HM Revenue & Customs (HMRC) requirements; excepted estates; Form IHT 400 and its Schedules; and the calculation of inheritance tax (IHT).
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This chapter focuses on the approach of the courts to alternative dispute resolution (ADR). Parties are required to consider ADR before proceedings are issued by the protocols and Practice Direction—Pre-action Conduct. If ADR is not undertaken before issue, then it should be considered at the track allocation stage (when all the statements of case have been filed), and again after exchange of documents, and also when witness statements and expert evidence have been exchanged. The court will actively consider whether attempts have been made to settle the dispute by ADR at any case management conference, and may direct the parties to attempt ADR. If the parties reject ADR, before issue or at any stage of the litigation, they should have reasonable and cogent reasons for doing so and may be required to explain these reasons to the court. Moreover, the courts will seek to uphold and enforce ADR clauses in contracts.
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This chapter examines how arbitrations are commenced with a notice of arbitration and the appointment of arbitral tribunals. Typically, arbitral tribunals will have either a sole arbitrator or a panel of three arbitrators. There are a number of variations on this theme. Examples include tribunals with a chairperson or an umpire, and the use of judge-arbitrators. The chapter then describes the contractual basis of the appointment of arbitrators, and the procedures dealing with the removal, resignation, or death of an arbitrator. The Arbitration Act 1996 seeks to give effect to the parties' agreements (between themselves or with the arbitrators) if it becomes necessary for an arbitrator to resign or be removed, but there are fall-back provisions allowing applications to the court because it is recognized that agreement may not be possible given the possibly contentious nature of these situations.
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This chapter discusses arbitration, which is an adjudicative dispute resolution process. It is based on an agreement between the parties to refer a dispute or difference between them to impartial arbitrators for a decision. As a consequence of the contractual basis of arbitration, it is not every dispute that can go to arbitration. The chapter considers the requirements for an effective reference to arbitration, but it should be noted that the agreement to arbitrate may be made before or after the relevant dispute has arisen. This means that there may be a pre-existing arbitration agreement which, when a dispute arises, one of the parties wishes to evade. There is a strong public policy in favour of upholding arbitration agreements; this is supported by the idea that an arbitration clause in a contract is separable from the rest of the substantive contract. Arbitrations in England and Wales are governed by the Arbitration Act 1996, which lays down a highly developed set of procedures for arbitrations.
