THE CIVIL JUSTICE SYSTEM

Question 1

WHAT IS THE CIVIL JUSTICE SYSTEM?

Answer 1

Civil law: a form of private law involving the
relationships between individual citizens or
organisations.
The civil justice system enables individuals
to assert claims against others, and have
those rights adjudicated and enforced.

Question 2

ROLE OF THE CIVIL JUSTICE SYSTEM

Answer 2

Identification of objectives:
A last resort designed to encourage settlement out of court,
OR
An accessible system for processing cases cheaply and quickly?

Question 3

THE CIVIL JUSTICE SYSTEM: THE FACTUAL SITUATION

Answer 3

Nature of civil disputes and people’s
attitudes
Prof. Hazel Genn’s research into peoples’
reactions to breaches of the civil law.
Large representative sample of the public
▶95% take some action to resolve a justiciable civil
dispute.
▶5% do not take action: high % on low incomes +
poor educational qualifications.

Question 4

MORE LITIGATION OR LESS? POSTITIVE AND NEGATICE FACTORS

Answer 4

More litigation as a POSITIVE factor:
Ensures fair treatment under the law.
People are more willing and able to enforce their
legitimate rights
Access to justice should be encouraged.

NEGATIVE factor:
Imposes a burden on society and on the court
system.
Unhealthy culture of complaint
Inability to accept risk as a normal part of life.

Question 5

litigation

Answer 5

the process of taking legal action.

Question 6

THE WOOLF REVIEW: WHATS THAT?

Answer 6

1994: Lord Woolf appointed by government to carry out a far reaching review of the civil justice system.
Complaint: system is unacceptably ineffective.
Consultation process: those working in the civil
justice system + review of the systems in other
countries.

Question 7

FINDINGS: INJUSTICE
& ADVERSARIAL PROCESS

Answer 7

Out of court settlements usually negotiated
before reaching trial stage. Provide quick end
to dispute and reduction in costs, BUT also
unfair for the claimant.
Encourages tactical manoeuvring rather than
co- operation between the parties.

Question 8

THE WOOLF CONCLUSIONS

Answer 8

1996: Final report
Problems of the civil justice system are
interrelated Litigation process is controlled by lawyers: draw out the process and so increase costs. Very little judicial management
Process degenerates into excessively adversarial contest.

Question 9

THE WOOLF PROPOSALS FOR REFORM

Answer 9

“Access to justice” Final report 1996
Overriding objective of the CJS: dealing with cases
fairly. Parties to the litigation on equal footing
Amount of time and money spent on case is
proportionate to the amount of the claim and the
complexity of the issue.

Question 10

TRACK ALLOCATION: WHATS THAT?

Answer 10

Allocation of case to one of 3 tracks: small track,
fast-track, multi-track.
Track allocation determines future proceedings
Criteria for track allocation: claim’s value + other
factors like complexity.

Question 11

TRACK ALLOCATION: SMALL CLAIMS

Answer 11

Claims with a value of less than £10,000.
Previously Small Claims court.
Cheap simple resolution of small-scale consumer
disputes.
Case directions: hearing date, and estimated
hearing time.
No disclosure, usually no open-court hearing.

Hearing: simple and informal
Few rules about admissibility or evidence
presentation.
60% of hearing take less than 30 mn.
Costs are limited
Parties represent themselves
No legal aid available for representation

Question 12

TRACK ALLOCATION: SMALL CLAIMS: APPEALS

Answer 12

SMALL CLAIMS: APPEALS
No right of appeal except if:
1.Serious irregularity affecting proceedings
2.Court made error of law
Out of 80,000 small claims actions per year; 5,000
are appealed

Question 13

TRACK ALLOCATION:SMALL CLAIMS: EVALUATION

Answer 13

*Quicker, cheaper, simpler than full county court
process.
*Helpful for litigants and court system.
*Effective for individuals and small businesses.
*Avoid claims for small amounts being ignored due
to high litigation costs.
*Increase of public confidence, access to justice

Question 14

TRAACK ALLOCATION:SMALL CLAIMS: APPEALS

Answer 14

*Small claims judgments can be appealed on same
grounds as other judgments.

Question 15

FAST TRACK PROCEDURE

Answer 15

*Normally dealt with by county court.
*Actions of a value between £10,000 and £25,000.
*Court issues directions for case management: timetable for disclosure, trial date.
*Duration of trial itself: no more than 1 day
*Trial period: no more than 30 weeks.
*Trial costs are fixed in advance.

Question 16

MULTI TRACK PROCEDURE

Answer 16

*Cases heard by the High Court
*Actions of a value higher than £25,000.
*Court issues direction for case management, including timetable.
*If case is heavy: management conference.
*No automatic setting of trial date.
*Individual case management according to needs of case.

Question 17

SANCTIONS

Answer 17

*Courts have increased powers to enforce CPR.
*Aim: litigation to be pursued diligently.
*Main sanctions: adverse award of costs; order for case(or part of a case) to be struck out.
*Enforcement of strict compliance.

Question 18

APPEALS

Answer 18

Purposes of an appeal:
*Test the validity of a decision
*Correct an error leading to unjust result
*Uniformity in judicial decision-making
*Changing circumstances
*Public confidence

Question 19

APPEALS IN CIVIL CASES

Answer 19

*Increase in the number of appeals
*Need for reform
*The Bowman review
*Access to Justice Act 1999: introducing the reform

Question 20

BOWMAN REVIEW: WHATS THATS

Answer 20

*Problems with the Court of Appeal’s procedure that was not able to accommodate influx of cases.
*High number of appeals in cases of low complexity
flooding the Court of Appeal.
*Levels of appeals: most should not be before such high- level judges.
*Recommended changes to the jurisdiction and
constitution of CoA, e.g. allowing single judge to settle case

Question 21

ACCESS TO JUSTICE ACT 1999: WHATS THAT

Answer 21

*Leave to appeal now required in all cases
*Appeal must have a ‘realistic prospect of success or other
compelling reason’ to be heard
*Normally only one level of appeal to the courts, appeal
should go to lowest appropriate court possible
*Only cases with merit should reach CoA
*CoA can sit with one, two or more judges.

Leave to appeal now required in all cases but two
exceptions in civil law:
* Appeal against committal to prison
* Appeal against refusal to grant writ of habeas corpus
*There is no appeal possible against refusal to grant appeal but new application to same or other court can be made.

Question 22

what is a leave to appeal

Answer 22

Permission granted to appeal against the decision of a court. From: leave to appeal in A Dictionary of Law »

Question 23

OUT-OF-COURT SETTLEMENTS

Answer 23

*Definition: OCS are agreements in which the claimant undertakes not to pursue their case in exchange for payment or a further remedy.
*Bargaining in the shadow of the law?

*New civil procedure rules encourage settlements
*Refusal of reasonable settlement may be sanctioned
*Active management by the court: stay of proceedings.
*Litigation: settlements are part of the adjudication
process.

Question 25

OUT-OF-COURT SETTLEMENTS PRO’S AND CON’S

Answer 25

*Advantages: quick end to dispute, reduced costs and flexibility, no legal costs to pay.
*Disadvantages: unequal parties (one-shotters and repeat players), pressure to settle, risks involved in formaladjudication.

Question 26

EVALUATING THE WOOLF REFORMS:WOOLF REFORMS: AN ASSESSMENT

Answer 26

*Reforms generally well received
*Significant drop in the number of cases reaching
court.
*Increase in out-of-court settlements: 8% of cases
listed for trial settle at trial, 70% settle much
earlier.
*Litigation clearly perceived as a last resort.
*But settling has drawbacks

Question 27

WOOLF REFORMS: AN ASSESSMENT:PROBLEMS REMAINING

Answer 27

*Problematic areas remaining:
*Enforcement/sanctions: timetables are unrealistic.
Sanctions not consistently applied, and generate
lots of appeals and penalize litigants, not lawyers.
*Costs: cost of litigation has increased, and there is
less funding available.
*Problematic areas remaining:
* Small claims are not always simple claims
* SC procedure is not simple enough.
* Lack of enforcement procedures for SC.
* Inconsistent application by judges
* Uncertainty regarding user-friendliness of the new system

Question 28

WOOLF REFORMS: CONCLUSION

Answer 28

*Reforms have had large impact on the system.
*Impact difficult to assess due to lack of data.
*A faster, but more expensive civil justice.
*Goal of Woolf reforms: accessible, fair, fast and
cheap litigation in all cases.

Question 29

Alternative methodes of Dispute Settlement: Why were they implemented?

Answer 29

Court hearings are not always the best method to
resolve disputes
Problems with court hearings:
Adversarial process, technical cases,
Lack of flexibility, imposed solutions, publicity.

Question 30

ADR: A DEFINITION

Answer 30

A set of practices and techniques that
aim: to permit legal disputes to be resolved
outside the courts for the benefit of all
disputants; to reduce the cost and delays of
conventional litigation; or to prevent legal disputes that would otherwise likely be brought to the courts

Question 31

ADR MECHANISMS: How does it work?

Answer 31

Negotiation: formal or informal
Mediation: mediator helps parties to find an
agreement.
Evaluative or facilitative mediation
Outcome MAY be an enforceable contract between
the parties

Question 32

MEDIATION: DIVORCE CASES: WHY DO THEY HANDLE DIVORCE CASES

Answer 32

Court system is not a suitable
environment
Tends to aggravate the dispute.
Traumatic process for all involved.
Family Law Act 1996: emphasises
mediation.
Evaluation: mediation relies on
willingness of parties to co-operate

Question 33

ADR MECHANISMS:Conciliation

Answer 33

Conciliation: similar to mediation, but the
conciliator is more interventionist.
Conciliation: cases of unfair dismissal
66% of cases are withdrawn or settled through
conciliation.
Imbalance of power between the parties
Court awards are higher than conciliation awards

Question 34

ADR MECHANISMS:Arbitration

Answer 34

Arbitration: both sides agree to let a third party,
the arbitrator, decide.
Arbitrators are lawyers or experts.
Decision made according to the law, and
enforceable.
Arbitration: commercial cases
Fees are high, but are cheaper than litigation.
Quick hearings, privacy, business relationship
preserved.

Question 35

ADVANTAGES OF ADR

Answer 35

Costs
Accessibility
Speed
Expertise
Conciliation of parties
Customer satisfaction.

Question 36

DISADVANTAGES OF ADR

Answer 36

Imbalance of powers
Lack of legal expertise
No system of precedent
Enforcement
Low take up rate