This introductory chapter provides a background on alternative dispute resolution (ADR), which refers to the full range of alternatives to litigation that might be available to a lawyer and client for resolving a civil dispute. In 1998, ADR was formally acknowledged by the Civil Procedure Rules (CPR) as being potentially relevant to all civil actions. Indeed, there is strong government support for the use of ADR in providing cost-effective options for civil dispute resolution. Over the last few decades there has been fast and increasing growth in the use and variety of forms of ADR. ADR options offer many potential advantages in terms of saving time and costs, providing confidentiality, and increasing client control. However, ADR also has some potential disadvantages, especially if it is not used appropriately, and some of the strategic opportunities available in litigation may be lost.
Chapter
1. Introduction
Chapter
21. Drafting skills
This chapter introduces drafting skills. It explains the differences between legal drafting and legal writing. Using a statement of case as an example of a document with a specific legal purpose, the chapter develops the skills of writing in concise, plain, and contemporary language, maintaining formality or legal accuracy and structuring a clear and logical draft which complies with the key parts of the Civil Procedure Rules 1998. It concludes with a worked example of improving the first draft of a set of particulars of claim.
Chapter
13. Joining the Right Parties
The accurate identification of parties is vital in an adversarial system. There must be a clear cause of action by the party named as claimant against the party named as defendant or the action will fail. Loss and damage must be also shown to have been caused to the named claimant by the named defendant or damages will not be recoverable. This chapter first discusses the selection of claimants and defendants, and other types of involvement (agency, vicarious liability, the role of insurance, substitution of parties). Where a business is a party to an action, it may be run by a sole trader, by a partnership, by a company, or by a public limited partnership. The correct legal personality must be used for the proper service of documents, for success in the action, and for enforcement of judgment. The remainder of the chapter covers the rules for specific types of parties; additional claims and additional parties under Civil Procedure Rules (CPR) Part 20; and the drafting of the Part 20 claim.
Chapter
10. Public interest immunity
This chapter first explains exclusion of evidence on the grounds of the public interest immunity (PII) doctrine in relation to the public interest in non-disclosure of documents. The chapter examines areas of public interest that are covered by possible PII claims. These include national security, defence and foreign policy, protection of children, the identity of police informers, and confidential records held by public bodies. The difference between PII and closed material procedures (CMPs) is outlined. The chapter, concentrating on civil cases, lists the landmarks in the evolution of the common law doctrine. It considers the extent which it has been influenced by the Strasbourg jurisprudence. Attention is given to the role of national security matters in the evolution of the law.
Chapter
XV. Documentary evidence
This chapter deals with documentary evidence. It first discusses the authentication of documents, by looking at proof under the new provisions of statements in documents generally; proof of business, and public, records; procedure under the Civil Procedure Rules; and some special considerations applying to public documents and to bankers' books. Next, the chapter turns to the proof of the execution of private documents. Here, the chapter considers the proof of handwriting and attestation, alongside the special provision permitting the use of electronic signatures. Finally, this chapter concerns whether, once a transaction has been embodied in a document, evidence may be given of terms other than those it mentions, and, second, the extent to which evidence may be given of the meaning of the terms used in the document.
Chapter
15. The civil process
This chapter is a general introduction to civil litigation and the civil courts. It describes the process by which a civil claim is dealt with in the County Court or the High Court. It provides an overview of the major case management powers in the civil courts and discusses how these powers must be exercised to further the overriding objective of the Civil Procedure Rules 1998 (as amended) to deal with matters justly and at proportionate cost. A brief history of the development of the civil court rules is included. Some of the basic principles of civil evidence are discussed and the methods of enforcement of civil judgments are set out.
Chapter
Additional Chapter Aspects of Commercial ADR
Although there is no formally agreed definition of alternative dispute resolution (ADR), it is generally accepted as including all methods of resolving disputes other than through formal litigation. The use of ADR has developed significantly over the past few decades and despite the use of the word ‘alternative’ it is now very much part of mainstream thinking in modern-day dispute resolution. The importance of ADR to civil actions was reinforced by the Civil Procedure Rules in 1998, which emphasized it as part of the overriding objective, encouraged at all stages of the dispute process, from pre-action to after litigation has commenced. This is reinforced by sanctions that a court can impose on a party which fails properly to embrace the process. The Review of Civil Litigation Costs carried out by Jackson LJ further promoted the importance and use of ADR. There are many different forms of ADR, both adjudicative and non-adjudicative. This chapter will focus on the use of mediation as a non-adjudicative form of ADR and the steps the courts take to require (rather than compel) the parties to attempt to resolve their disputes.
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Introductory remarks on the law of evidence
Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This introductory chapter discusses the origins of a ‘law of evidence’ and the properties of the law of evidence. The law of evidence is rapidly evolving and, particularly in criminal cases, the Criminal Procedure Rules have transformed the environment within which they operate.
Since it determines the critical issue of which particular items of proof parties are permitted to produce before a court in support of their contentions, it would be hard to exaggerate the subject’s importance and relevance.
Chapter
15. The civil process
This chapter is a general introduction to civil litigation and the civil courts. It describes the process by which a civil claim is dealt with in the County Court or the High Court. It provides an overview of the major case management powers in the civil courts and discusses how these powers must be exercised to further the overriding objective of the Civil Procedure Rules 1998 (as amended) to deal with matters justly and at proportionate cost. A brief history of the development of the civil court rules is included. Some of the basic principles of civil evidence are discussed and the methods of enforcement of civil judgments are set out.
