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Chapter

Cover A Practical Approach to Alternative Dispute Resolution

1. Introduction  

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

Cover A Practical Approach to Effective Litigation

14. Pursuing Appropriate Remedies  

The main purpose of most litigation is to secure a remedy or relief. That is the reason why the claimant starts the action, and it should be the focus of many decisions relating to the case. From the first contact with the client, lawyers must be clear about what the client really wants to achieve, and decisions about causes of action, evidence, and interim applications should focus on the remedies and relief being pursued. This chapter discusses the remedies a court can and cannot order; claims for damages; quantification of damages; and claims for interest on top of claims for the payment of a sum of money or damages. The final section covers the importance of taking a proactive approach to claiming and quantifying damages.

Chapter

Cover A Practical Approach to Civil Procedure

49. Judicial Review  

This chapter discusses the rules for judicial review. Judicial review lies against public bodies and must be brought by a person with a sufficient interest. There are six remedies available on applications for judicial review (quashing order, mandatory orders, prohibitory order, declaration, injunction, and money awards). Before commencing judicial review proceedings, a claimant should comply with the judicial review pre-action protocol. Permission must be sought to proceed with a claim for judicial review. Defendants must be served with the judicial review claim form, and unless they acknowledge service they cannot appear at the permission hearing unless the court allows them to attend.

Chapter

Cover A Practical Approach to Effective Litigation

11. Making Strategic Use of the Pre-Action Stage  

This chapter focuses on the pre-action stage of the litigation process. Most civil disputes are settled prior to the issue of any proceedings. Save where a pre-issue application is appropriate, no court will be involved. Nonetheless the approach taken to resolving the dispute will be shaped to a significant extent by the view a court might take if proceedings were to be issued. The chapter discusses the Practice Direction Pre-Action Conduct, which seeks to enable parties to settle disputes without the need to start proceedings, and to support the efficient management by the; pre-action protocols, which set out the steps that the parties should follow before issuing proceedings; steps in preparing a case; forming the relationship with the other side; deciding when to issue proceedings; and portal claims.

Chapter

Cover A Practical Approach to Effective Litigation

2. An Overview of the Litigation Process  

This chapter provides an overview of the main stages of the litigation process. It first describes the Civil Procedure Rules 1998 and the accompanying Practice Directions, which provide a basis for civil litigation, as well as the adversarial approach and the right to a fair trial. It then explains the various stages of the litigation process, beginning with the pre-action stage, which involves gathering appropriate information, evaluating the case, taking key decisions about framing the case, and building a working relationship with the other side. This is followed by discussions on starting an action; statements of case (i.e. defining the parties, the issues between the parties, and remedies sought); interim stages and case management; options for interrupting or ending litigation; preparations for trial; trial and judgment; and cases with an international element.

Chapter

Cover Tort Law

14. Breach of statutory duty  

This chapter considers the tort of breach of statutory duty. Unlike the statutory duties contained in the Occupiers’ Liability Acts 1957 and 1984 or the Consumer Protection Act 1987, where liability arises directly according to the provisions of the statute itself, in a civil action in the tort of breach of statutory duty, liability arises indirectly where a statute imposes a duty but does not identify a civil remedy in the event of its breach. The tort is a combination of statute and the tort of negligence; the duty is defined by statute, while the action lies in the common law. It should be noted that while much of the case law arises in the employment context, the tort of breach of statutory duty extends beyond this.

Chapter

Cover A Practical Approach to Civil Procedure

45. Norwich Pharmacal and Related Disclosure Orders  

This chapter considers a number of other special forms of disclosure orders, the best known of which is the Norwich Pharmacal order. Norwich Pharmacal orders are primarily used for finding the identity of an unknown potential defendant. They can only be sought against a person who facilitated and got ‘mixed up’ in the wrongdoing. Norwich Pharmacal orders therefore cannot be made against ‘mere witnesses’. Pre-action disclosure orders bring forward the time when disclosure of documents takes place to the period before a claim is issued. Disclosure against non-parties enables the court to order a witness to produce documents in advance of the trial, thus avoiding adjournments when documents are produced at the last minute at trial.

Chapter

Cover Tort Law

14. Breach of statutory duty  

This chapter considers the tort of breach of statutory duty. Unlike the statutory duties contained in the Occupiers’ Liability Acts 1957 and 1984 or the Consumer Protection Act 1987 where liability arises directly according to the provisions of the statute itself, in a civil action in the tort of breach of statutory duty, liability arises indirectly where a statute imposes a duty but does not identify a civil remedy in the event of its breach. The tort is a combination of statute and the tort of negligence; the duty is defined by statute, while the action lies in the common law. It should be noted that while much of the case law arises in the employment context, the tort of breach of statutory duty extends beyond this.

Chapter

Cover The Politics of the Police

11. Police powers and accountability  

Benjamin Bowling, Robert Reiner, and James Sheptycki

This chapter focuses on police powers, accountability, and the regulation of police discretion. It begins by considering the legitimation of police legal powers in democratic societies and the problem of police accountability. There is then discussion of policy-making for the police force—priorities in resource allocation, strategy, and style—and the street-level actions of rank-and-file officers. Developments in police powers before and after the landmark Police and Criminal Evidence Act (PACE) 1984, and the principle of fundamental balance between powers and safeguards supposedly enshrined in PACE are covered. The chapter then examines developments in police accountability, including the mechanisms for handling complaints against the police and the role of political control in police governance. It concludes by assessing the attempts to reconcile police power and democratic accountability in contemporary societies characterized by a patchwork of domestic, transnational, public, and private police agencies carrying out ‘high’ and ‘low’ policing.

Chapter

Cover Borkowski's Textbook on Roman Law

3. Roman Litigation  

This chapter begins with a discussion of the perils of litigation in early Rome. It then describes the legis actiones, the five early forms of action in Roman law. All the legis actiones were characterized by strict formalism and were only available to Roman citizens. The actions-at-law were the foundation of early civil procedure. However, the excessive formality, archaic nature, and limited effectiveness of the legis actiones made it unsuitable in the long term for a rapidly expanding, economically vibrant Rome. The system fell largely into disuse in the late Republic and was formally abolished by Augustus in 17 BC, by which time the formulary procedure had long become established. The formulary system remained the operative system of civil procedure well into the Empire but was later abolished in favour of the cognitio procedure; its operation is considered in its developed form in the later Empire.