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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

16. Defending an Action  

This chapter focuses on the role of the defendant. The litigation system in England is adversarial, thus on the face of it the role of the defendant is potentially defensive, confrontational, and non cooperative. While the objective of the defendant will usually be to make the claim go away, the perhaps natural desire to take an approach that involves denial, delay, and obfuscation wherever possible must be resisted, or at least carefully considered. The chapter discusses the main types of defence to an action; dealing with the early stages of an action when a claim form is received; rules for drafting a defence; making a counterclaim; claiming a set-off; a general framework for a defence and counterclaim; and strategies and tactics in defending a case.

Chapter

Cover A Practical Approach to Effective Litigation

3. Dispute Management, Project Management, and Risk Management  

This chapter first considers the project management approach to resolving civil disputes. Such an approach involves following a single overall plan from the first consideration of the legal dispute up to trial. However, the fact that most cases will not in fact reach trial, and that reasonable use of alternative dispute resolution must now be made at all stages, means that any plan must be sufficiently flexible to include review, and that review needs to include options as to process. The chapter then turns to the process of case evaluation, where lawyers value what a case is worth, assess the chances of winning a case, and conduct a cost-benefit analysis. Also discussed are the importance of proportionality in the conduct of litigation and managing and reducing the risk of losing a case.

Chapter

Cover A Practical Approach to Effective Litigation

4. ADR, Settlement, and Part 36 Offers  

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.

Chapter

Cover English Legal System Concentrate

8. The Civil Justice System  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter discusses the civil justice system. Civil justice is concerned with the private dispute between individuals in the absence of the state. It seeks to solve disputes before they have had a chance to enter the legal structure, through the use of alternative dispute resolution (ADR). Civil justice follows a similar pattern to its criminal counterpart; however, some of the procedural rules—specifically those relating to evidence—appear to be much more relaxed than in the criminal justice system. During the process of civil justice, a number of issues may arise which would bring the procedure to an end. These issues include ADR, through which parties may decide to settle the case at any point; default judgment, wherein judgment may be entered against a defendant at any point in the proceedings; and offers to settle, known as ‘Part 36 Offers’, in which an individual makes an offer to another without prejudice.

Chapter

Cover The English Legal System

17. Civil Litigation  

Alisdair A. Gillespie and Siobhan Weare

This chapter considers the conduct of civil litigation. It discusses how civil litigation is more managed than criminal litigation and the courts seek to assist litigants in finding a compromise. The civil courts have extensive powers over costs and they use this to ensure compliance with their rulings and also to encourage early settlement, reducing the need for litigation. The chapter examines three types of civil litigation; cases relating to the small-claims track (‘small claims court’), judicial review and private family-law disputes.

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 The English Legal System

17. Civil Litigation  

This chapter considers the conduct of civil litigation. It discusses how civil litigation is more managed than criminal litigation and the courts seek to assist litigants in finding a compromise. The civil courts have extensive powers over costs and they use this to ensure compliance with their rulings and also to encourage early settlement, reducing the need for litigation. The chapter examines three types of civil litigation; cases relating to the small-claims track (‘small claims court’), judicial review, and private family-law disputes.

Chapter

Cover Introduction to the English Legal System

8. The civil and commercial justice systems  

This chapter discusses the civil and commercial justice systems. It considers the purpose of the civil justice system and also covers the use of alternative dispute resolution and the incentives to keep disputes out of the court. It looks at the court structure, the county court, the High Court, the newly created Business and Property Courts of England and Wales, and other courts and offices. It considers possible changes that may result from the Transformation programme and the civil and commercial justice systems’ response to the COVID-19 pandemic. It also considers routes of appeal and the work of the appeal courts.

Chapter

Cover A Practical Approach to Effective Litigation

1. The Growing Focus on ‘Effective’ Litigation  

This chapter briefly sets out the purpose of the present text, namely to outline how a civil dispute may be dealt with in the most effective way, using litigation in a modern context. The text offers a sound guide to all the rules and principles that are most important at each stage of the litigation process, and what skills and practical considerations are relevant. The chapter then considers changes relating to the litigation process brought about by Sir Rupert Jackson' Review of Civil Litigation Costs: Final Report published in January 2010. This is followed by discussions of the meaning of ‘effective’ litigation, the overriding objective of litigation, the changing legal environment, and the time and financial aspects of litigation.

Chapter

Cover A Practical Approach to Effective Litigation

6. Financing Litigation  

This chapter focuses on funding options for litigation. Expense is one of the biggest issues relating to litigation. The high cost of litigation has perhaps been tolerated to some extent out of respect for the expertise of lawyers and because of problems in finding a consensus on how litigation is best funded. The detailed work of the Jackson Review of Civil Litigation Costs has provided a strong basis for development, and there have been numerous expressions of judicial concern with regard to the high level of costs. The chapter begins by considering the sources of legal expense, the parties that bear the expense, and the problems that arise with regard to the expense of litigations. It then discusses funding options for litigation, including self-funding, insurance, conditional fee agreements, damage-based agreements, third party funding, and public funding. It also presents options for funding alternative dispute resolution (ADR).

Chapter

Cover Family Law Concentrate

3. Divorce, dissolution, and judicial separation  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on divorce, dissolution, and judicial separation as means of ending marriage or civil partnership. It first considers the grounds for divorce/dissolution and highlights five facts that can be used to prove a marriage has irretrievably broken down: adultery, behaviour, desertion, two years’ separation with consent, and five years’ separation. The chapter then compares no-fault divorce with divorce based on fault and provides an overview of the debates surrounding reform. Finally, it considers alternatives to the court process when dealing with divorce, dissolution, and judicial separation, with a particular focus on mediation.

Chapter

Cover Introduction to Business Law

2. The Court System and Alternative Dispute Resolution  

This chapter discusses the English court system, civil disputes, and alternative dispute resolution. The courts in England and Wales form a hierarchy. At the lowest level are the Magistrates’ Courts and the County Courts, then the Crown Court and High Court, then the Court of Appeal, and finally the Supreme Court. The chapter considers the role of the Court of Justice of the European Union in interpreting EU law within Member States. It explains the position of the European Court of Human Rights, which deals with allegations of state breaches of the European Convention on Human Rights. Civil disputes arise in every area of business. An explanation of the civil procedure rules from commencing a claim to enforcement of a court judgment is provided. The chapter concludes with a discussion of alternative methods of dispute resolution including arbitration, mediation, and conciliation.

Chapter

Cover Commercial Law

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.

Chapter

Cover English Legal System Concentrate

2. Introduction to Sources of Law and Court Structure  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter introduces the various sources of law before proceeding onto a discussion of the courts of England and Wales. The courts of England and Wales can be divided into numerous different classifications. There are three different ways that courts may be classified: criminal and civil courts, trial and appellate courts, and superior and inferior courts. In England and Wales, there is often thought to be a stark divide between criminal and civil courts. Criminal courts deal with individuals who have ‘allegedly’ committed a criminal offence and it is the role of the arbiters of fact to determine the guilt or innocence of a defendant based on the evidence presented before them. On the other hand, civil courts deal primarily with the resolution of private disputes between individuals. Such disputes can include matters of contract law, personal injury, and family law. However, the jurisdiction of some courts is not limited to one area of law, but rather is approachable for both substantive areas of law.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

18. Court Mediation Schemes and Other Schemes  

This chapter examines Court Mediation Schemes and other schemes. Time-limited, fixed-cost mediations can take place through Court Mediation Schemes and the Civil Mediation Online Directory. Some courts also operate judicial mediation schemes. There are many industry- and sector-specific schemes, and mediation is now being employed in some criminal cases to achieve restorative justice. Mediation can be used effectively in multi-party or complex disputes, although modifications may need to be made to the process to take account of the multiplicity of parties and/or issues. It can also be used in public sector and regulatory disputes. There is a move towards mandatory information mediation assessment meetings at which the parties are required to consider but not undertake mediation.

Chapter

Cover Legal Systems & Skills

3. The court system of England & Wales  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter outlines the court system of England & Wales, first explaining key themes and concepts that are essential for understanding the structure and mechanics of the English courts. It then discusses the criminal courts and civil courts of England and Wales; other courts and forums that have significance in the English legal system, such as the European Court of Human Rights and the European Court of Justice, but are not part of the English court system; and alternatives to litigation (alternative dispute resolution, arbitration, Ombudsmen, and negotiation).