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22 December 2020
The judiciary administration has updated the Guidance Note for Case Settlement Conferences in Civil Cases in the District Court.(1) The updated guidance note is dated 16 December 2020 and is supported by an explanatory supplemental note. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court and comes into effect on 2 January 2021. The updated version appears to address concerns that were raised relating to potential encroachments on parties' rights to legal representation and the protection afforded to the confidentiality of mediation and without prejudice communications.
The guidance note is well intentioned and seeks to extend a pilot scheme intended to promote settlement in general civil cases in the District Court using case settlement conferences (for further details please see "Settlement 'solutions' looking for problems?").
However, concerns began to surface about certain provisions in the original version of the guidance note dated 14 October 2020. These concerns appear to have focused on two principal issues:
Not to be lost in these concerns are the good intentions underlying the guidance note and the obligation on the parties and their legal representatives to assist the court in furthering the objectives of the court rules, including facilitating the settlement of disputes.
The updated guidance note is dated 16 December 2020 and comes into effect on 2 January 2021.
The provision in Paragraph 13 (limiting the parties' right to legal representation) has been removed. The emphasis is now more on the legal representatives' role to assist in facilitation of settlement when appearing at case settlement conferences with their clients.
The provision in Paragraph 10 (with respect to disclosure of without prejudice correspondence) has been revised to require that the parties provide a "statement" of their latest offer and counter-offer. Also removed is the provision in Paragraph 14 which purported to exclude the protection afforded to without prejudice communications. The court official presiding over the case settlement conference may still "review and evaluate" the process of any without prejudice negotiation and, with the parties' consent, any concluded but unsuccessful mediation.(2)
The updated version of the guidance note contains some important revisions that should be welcomed and appear to represent a lighter touch.
It is important that parties and their legal representatives in the District Court understand the background to the guidance note, as set out in its introduction.(3) Equally important is the supplemental note which elaborates on (among other things):
Not to be lost in all of this is the point that the guidance note strikes at the heart of so-called 'sham' mediations in those general civil cases that come within the monetary jurisdiction of the District Court and that is a good thing to be applauded.
During the next two weeks (and irrespective of a COVID-19-restricted festival period), legal practitioners and affected parties in the District Court would do well to familiarise themselves with the guidance note (and its two appendices) and the supplemental note.(5)
The guidance note represents an important development with respect to general (non-personal injury) civil cases in the District Court and unmerited resistance is likely to be futile and could attract costs sanctions.
For further information on this topic please contact Adalia Chan or David Smyth at RPC by telephone (+852 2216 7000) or email (firstname.lastname@example.org or email@example.com). The RPC website can be accessed at www.rpc.co.uk.
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