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In these challenging times, our teams have been receiving a high volume of queries from clients on civil mediation and how it works in the current climate.
To help our clients, Hugh Smith, head of our Litigation and Dispute Resolution team has collated some of his most frequently asked questions on this matter, with his responses, in the hope that this information is useful to you. Each week, we publish an article with a new set of questions but if you have any queries, at any time, please talk to the team for more detailed advice that is specific to you and your particular requirements.
In the light of Covid 19 are cases still proceeding?
Yes the Court system is still working. Proceedings are mostly being issued online but can still be commenced by post. Cases are taking slightly longer to progress, though the timescales for response to proceedings issued against individuals remain in place and are being strictly enforced. So, if you receive court papers the response times are strict and immediate action is required.
The Judiciary have embraced remote working, using platforms such as Skype and Zoom for most pre-trial hearings to avoid the need for parties to attend court. Strict rules apply, including the requirement that no one is allowed to record or broadcast the hearings. Some hearings are being conducted by e-conference calls.
There have also been changes that require the parties involved to produce document bundles in a particular PDF form, rather than hard copy, which has enabled the civil court system to continue to function.
If I have a dispute what options are open to me to try to settle?
The Court actively encourages parties to settle their differences between themselves if possible and will penalise parties who refuse to try to compromise their claim. There are various ways in which this can be achieved.
- Having a “without prejudice” discussion or exchange of correspondence. Anything said or exchanged between the parties under the without prejudice banner cannot be brought to the attention of the Judge. This is designed to enable a party to make concessions in connection with an offer to settle.
- Having a “Without prejudice save as to costs” discussion. Using this banner it means that you can make concessions to the other side but if you do not settle, the court will not be shown the correspondence until it has decided the case. The correspondence will then be shown to the Judge to show that perhaps one party tried to settle and the other acted unreasonably and therefore either ought to pay the costs of the case or should receive less than the full costs.
- If it is difficult to speak with the other side it is possible to involve a mediator, whose fees will generally be split between the parties. Normally the mediation lasts for a day. The mediator acts as a ‘go between’, trying to bring the parties together to reach a settlement. The mediation is held under a Without Prejudice banner. This means that if you do not settle, anything said or exchanged during the mediation cannot be used in court, unless (in the case of documents) they are otherwise disclosed to the other side as part of the court process.
- You can make a formal Part 36 offer. This refers to a process set out in the Civil Procedure Rules where the Court encourages a party to make an offer of settlement to the other side. If that offer is refused and you go to trial and beat what you offered, the costs recovery against the other side is enhanced. A Claimant can offer to settle at £30,000 plus costs when the claim is for £50,000. If the Defendant refuses the offer and the Claimant is awarded £40,000 by the Judge who, at that stage, is unaware of the offer when the question of costs is decided on by the Judge the Claimant gets and extra 10% of the award and, from the date of the offer, makes a more generous recovery for costs. A Defendant can also make an offer. So, using the above example, if the Defendant had offered £42,000 plus costs under this rule (assuming the claimant made no offer and refused the £42,000) then the Claimant would get £40,000 and its costs up to the date of the offer but the Claimant would have to pay the Defendants costs from the date of the offer because he/she would be deemed to have unreasonably refused the offer to settle.
Can I still make an offer to settle and if so how?
Yes, you can still use any of the ways to settle a case that were available before lockdown. The safest approach (which we encourage) is to see if negotiations work first. If that fails, try to mediate and, by that time, if it fails you will have a pretty good idea where to pitch your Part 36 offer. These steps are best done before proceedings are issued, when costs on both sides are low.
Is it possible to conduct a mediation to try to settle a case when we have to use social distancing?
Absolutely. I recently was involved in a 12 hour long mediation conducted via Zoom. This was hosted by the Mediator and, after waiting in a virtual waiting room, he allocated each person to their appropriate room. Each party had access to an agreed PDF bundle of documents and the Mediator joined each side in their virtual room to discuss the case. My side had a barrister in London, a client based in York and an accountant in Hull. The lawyers on the other side were in London and Manchester with their client also based in York. No one had to travel, which saved travelling costs and no one was put at risk.
I am aware from discussions with a fellow mediator that some mediations have taken place with a lawyer and his client being in the same room on each side and the Mediator going between the parties on Zoom. This causes the issue of social distancing and is perhaps less desirable in circumstances where the mediation can last a long time.
My preference at the moment is for all the parties to participate from the comfort of their own home
Are trials happening still?
Yes, some trials are still taking place by being conducted by Skype, but only where the parties agree that this can be achieved without a problem, and where cases are likely to last no longer than 3 days.
The position is different with regards to the criminal court system, where court rooms have opened again with social distancing and where some hearings still take place as before lockdown, by video conferencing. In the Criminal Courts there is currently a backlog with regard to jury trials, which the courts will have to resolve in due course.
Our team is on hand to help you, your business and your family however we can, so please get in touch with us on 01482 325242 or email email@example.com
Correct as of 5pm 9.7.2020