Bar Professional Training Course (BPTC) Conference Skills, Resolution of Disputes Out of Court and Remedies Syllabus

What costs consequence may follow an unreasonable refusal to engage in ADR (per Halsey v Milton Keynes)?

A successful party who has unreasonably refused to mediate may be penalised in costs (e.g. deprived of some or all of its costs), even though it won, the burden being on the unsuccessful party to show the refusal was unreasonable.

List the six Halsey factors relevant to whether a refusal to mediate was unreasonable.

(1) Nature of the dispute; (2) merits of the case; (3) extent to which other settlement methods were tried; (4) whether ADR costs would be disproportionately high; (5) whether delay would be prejudicial; and (6) whether ADR had a reasonable prospect of success.

What is the overriding objective of the CPR, and how does ADR relate to it?

The overriding objective (CPR 1.1) is to enable the court to deal with cases justly and at proportionate cost. Active case management (CPR 1.4) includes encouraging and facilitating ADR, so ADR directly serves the overriding objective.

What is the difference between 'distributive' and 'integrative' negotiation strategy?

Distributive (positional/'win-lose') treats the matter as a fixed pie where one party's gain is the other's loss. Integrative (principled/'win-win') seeks to expand value and find mutually beneficial solutions based on underlying interests.

In principled negotiation, what is meant by 'separating the people from the problem'?

Dealing with relationship/emotional issues independently from the substantive merits, so personal friction does not derail the negotiation — be soft on the people but hard on the problem.

Define BATNA and explain its role in negotiation.

Best Alternative To a Negotiated Agreement — the best outcome a party can achieve if no deal is reached (e.g. going to trial). It sets the benchmark: a party should not accept a settlement worse than its BATNA, and it determines bargaining power.

What is a negotiator's 'reservation point' (resistance point)?

The least favourable point at which a party will accept a deal — the walk-away threshold derived from the BATNA. Settlements occur within the bargaining range between the parties' reservation points (the ZOPA).

What is the 'ZOPA' in negotiation?

The Zone Of Possible Agreement — the overlap between the parties' reservation points within which a deal is achievable. If there is no overlap, no negotiated settlement is possible.

What are the barrister's core professional duties when negotiating on a client's behalf?

To act in the client's best interests within instructions, maintain independence and integrity, not knowingly mislead the opponent, observe without-prejudice rules, advise on offers, and reserve the settlement decision to the client.

Does the 'without prejudice' rule protect negotiation communications, and what is its effect?

Yes. Genuine without-prejudice communications made in a genuine attempt to settle a dispute are generally inadmissible in court as evidence of admissions, encouraging frank settlement discussion; the protection can be waived only by both parties.

State the fundamental compensatory aim of an award of damages in tort (the principle from Livingstone v Rawyards Coal).

To put the claimant, so far as money can, in the position they would have been in had the tort not been committed (restitutio in integrum) — restoring the claimant to their pre-tort position.

State the compensatory aim of damages for breach of contract (Robinson v Harman).

To put the claimant, so far as money can do it, in the position they would have been in had the contract been performed — protecting the expectation (performance) interest.

Distinguish general damages from special damages.

General damages are losses not capable of precise calculation, assessed by the court (e.g. pain, suffering and loss of amenity, future loss). Special damages are quantifiable, accrued pecuniary losses up to trial (e.g. lost earnings, medical bills incurred).

Distinguish 'expectation', 'reliance' and 'restitution' measures of contract damages.

Expectation: value of the benefit expected from performance (loss of bargain). Reliance: wasted expenditure incurred in reliance on the contract. Restitution: recovery of a benefit conferred on the defendant, reversing unjust enrichment.

What is the rule on remoteness of damage in contract (Hadley v Baxendale)?

Damages are recoverable only for loss that either (1) arises naturally in the usual course of things from the breach, or (2) was within the reasonable contemplation of both parties at the time of contracting as a probable result of breach.

What is the test for remoteness of damage in tort (negligence)?

Loss is recoverable only if the type/kind of damage was reasonably foreseeable at the time of the breach of duty (The Wagon Mound No 1); the precise extent or manner of occurrence need not be foreseeable.

State the claimant's duty to mitigate loss and its three limbs.

A claimant cannot recover for loss it could reasonably have avoided. The limbs: (1) must take reasonable steps to minimise loss; (2) cannot recover loss flowing from a failure to do so; and (3) can recover reasonable costs of mitigation, even if unsuccessful.

What is the difference between contributory negligence and a failure to mitigate?

Contributory negligence concerns the claimant's fault contributing to the occurrence/extent of the loss, leading to a proportionate reduction under the Law Reform (Contributory Negligence) Act 1945. Mitigation concerns the claimant's post-breach conduct in limiting loss already caused.

How are damages reduced for contributory negligence?

Under s.1 Law Reform (Contributory Negligence) Act 1945, damages are reduced 'to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage' — a percentage reduction, e.g. a $25\%$ deduction.

What are nominal damages and when are they awarded?

A small token sum awarded where a legal right (e.g. a contractual right or a tort actionable per se like trespass) has been infringed but the claimant has suffered no actual loss, vindicating the right without compensating loss.

Define aggravated damages and how they differ from exemplary (punitive) damages.

Aggravated damages are compensatory — they compensate for additional injury to feelings/dignity caused by the manner of the defendant's conduct. Exemplary (punitive) damages are non-compensatory — they punish and deter outrageous conduct, available only in limited categories.

State the three categories from Rookes v Barnard in which exemplary damages may be awarded.

(1) Oppressive, arbitrary or unconstitutional action by servants of government; (2) where the defendant's conduct was calculated to make a profit exceeding the compensation payable to the claimant; and (3) where expressly authorised by statute.

What is the general formula for the lump-sum calculation of future pecuniary loss (e.g. future loss of earnings) in personal injury?

$$\text{Award} = \text{Multiplicand} \times \text{Multiplier}$$ where the multiplicand is the annual net loss and the multiplier is the actuarial factor (from the Ogden Tables) reflecting the period of loss adjusted for accelerated receipt via the discount rate.

What is the 'discount rate' in personal injury damages and why is it applied?

It is the assumed net annual return a claimant can earn by investing a lump sum, used to discount future losses for accelerated receipt so the claimant is neither over- nor under-compensated. It is set by the Lord Chancellor under the Damages Act 1996.

Equitable remedies are 'discretionary' — what are the key principles (maxims) governing their grant?

They are discretionary, not as of right: granted only where damages are inadequate, subject to the claimant's clean hands, no laches (undue delay), no unfair hardship to the defendant, and the readiness of the claimant to perform their own obligations.

What is specific performance and when will it be ordered?

An equitable order compelling a party to perform its contractual obligations. Granted where damages are inadequate (e.g. sale of land or unique goods), but refused for contracts requiring constant supervision, personal services, or where it would cause undue hardship.

Distinguish prohibitory, mandatory and quia timet injunctions.

A prohibitory injunction restrains a party from doing an act; a mandatory injunction compels a party to do a positive act (granted more cautiously); a quia timet injunction restrains a threatened but not-yet-committed wrong.

State the American Cyanamid guidelines for granting an interim (interlocutory) injunction.

(1) Is there a serious question to be tried? (2) Would damages be an adequate remedy for either side? (3) If not, where does the balance of convenience lie? and where evenly balanced, (4) preserve the status quo. The claimant must usually give a cross-undertaking in damages.

What is rescission as an equitable remedy, and what bars it?

Rescission unwinds a contract and restores parties to their pre-contractual position (e.g. for misrepresentation/undue influence). Bars include: impossibility of restitutio in integrum, affirmation, lapse of time/laches, and intervention of bona fide third-party rights.

What is rectification?

An equitable remedy correcting a written document that, by common (or in limited cases unilateral) mistake, fails to record the parties' true prior agreement, so that the document reflects what the parties actually agreed.

What is the principle underlying restitution and the role of unjust enrichment?

Restitution reverses unjust enrichment: it requires a defendant who has been unjustly enriched at the claimant's expense to give up that gain. The classic four-stage test: (1) Was the defendant enriched? (2) At the claimant's expense? (3) Was the enrichment unjust (a recognised unjust factor)? (4) Are there defences?

What is a declaratory judgment (declaration), and when is it useful?

A binding court statement of the legal rights, status or obligations of the parties without ordering any coercive relief or awarding damages. It is useful to clarify uncertain legal positions, in public law/judicial review, and where parties need authoritative resolution of a legal question.