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civil courts Flashcards

1
Q

which two civil courts hear trials

A

county and high

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2
Q

what two factors determine which court hears the trial

A

amount of damages being claimed and complexity

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3
Q

what can the county court try

A

all contract and tort claims for compensation

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4
Q

what are the 3 divisions of the high court

A

QBD, chancery and family

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5
Q

what does the QBD deal with

A

contract and tort cases where amount claimed is over £50,000

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6
Q

where are civik cases allocated to

A

one of three ‘tracks’

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7
Q

what does allocation of civil cases depend on

A

value and complexity of claim

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8
Q

small claims track

A

disputes under £10,000

personal injury under £1000

heard by district judge in county court

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9
Q

fast track

A

straightforward disputes of £10,000-£25,000

personal injury over £1000

heard by district/circuit judge in county court

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10
Q

multitrack

A

claims over £25000 or complex cases under this amount

heard in county court by circuit judge/ in high court by high court judge

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11
Q

what do appeals against liability and/or amount of damages from county court for claims under £25,000 depend on

A

the level of the judge who heard the trial

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12
Q

by who are appeals against liability and/or amount of damages from county court for claims under £25,000 heard by if the trial was heard by a district judge

A

circuit judge in same county court

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13
Q

by who are appeals against liability and/or amount of damages from county court for claims under £25,000 heard by if the trial was heard by a circuit judge

A

to a high court judge

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14
Q

is there a possibily of further appeal from trials heard initially in the county court for claims under £25,000

A

in exceptional cases

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15
Q

for which claim is the appeal route to the CA with a further chance of appeal to Supreme Court

A

claims over £25000 which have been dealt with as multitrack cases in county court

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16
Q

where will appeals against liability and/or amount of damages from the high court be heard

A

C/A and then Supreme Court

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17
Q

what do appeal courts have the power to do

A

affirm, set aside or vary any order or judgement of the lower court

can also order new trial

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18
Q

(brief) list 4 advantages of using civil courts

A
  • fair process
  • decision made by judge who is an expert
  • outcome is certain
  • appeal usually possible
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19
Q

why is using civil courts a fair process

advantages in more depth

A

judge is impartial and everyone is treated alike. if it is a public hearing justice is seen to be done

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20
Q

who makes the decision on liability in civil courts

advantages in more depth

A

after hearing all the evidence, the decision on liability is made by a judge who is a qualified and experienced lawyer

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21
Q

why is the outcome certain in civil courts?

advantages in more depth

A

can be enforced through courts in a number of different ways

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22
Q

possibility of appeal in civil courts?

advantages in more depth

A

usually possible to appeal against courts decision and there are set appeal routes

a part can also appeal about a tribunals decision and arbitration on a point of law. no appeal routes for other methods of resolving civil dispute

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23
Q

list 4 disadvantages of using civil courts

A
  • expensive
  • takes a long time
  • very formal system
  • difficult for an ordinary person to deal without help of a lawyer
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24
Q

why are costs of civil courts a problem

disadvantages in more depth

A

cost of taking a case to court often more than amount claimed

can cost 100s of 1000s of pounds in high court

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25
Q

why are claims for large amounts not settled for years

disadvantages in more depth

A

there are many preliminary stages to go through before the trial

eg. evans v lilconshire hospital trust: damages for over £5 million awarded for injuies during birth caused by medical negligence- child was 11 before it was settled

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26
Q

what is the issue with courts being formal

disadvantages in more depth

A

can be intimidating to some individuals

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27
Q

why is the civil court system difficult for an ordinary person to deal with without the help of a lawyer
(disadvantages in more depth)

A

set pre-action protocol must be followed in some cases before a case can start and parties must exchange certain information. there are various forms to complete during a case and further procdeures to follow as stated in CIVIL PROCEDURES RULES 1998

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28
Q

what does ADR stand for

A

alternative dispute resolution

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29
Q

what are the 4 methods of ADR

A

negotiation
mediation
conciliation
arbitration

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30
Q

how does negotiation operate

A

party directly communicates with the person theyre in dispute with in an attempt to settle the dispute

can be face to face or over phone/email etc

parties can continue communicating until resolution is made/fails

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31
Q

what are the possible outcomes of negotiation

A

dispute is resolves and the outcome can be enforced in court if parties formally agree

If negotiation fails, wronged party could sue in courts or use another method of ADR

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32
Q

Types of cases resolved by negotiation

A

All civil disputes

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33
Q

How does mediation operate

A

Neutral third party helps parties reach a compromise without imposing solution on them

Mediator passes messages back and forth between parties until they reach own agreement

Parties will choose exact method of mediation they want

More formal method can involve a mini trail where each side presents a case to a panel composed of a Rep of ech side and neutral mediator

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34
Q

Possible outcomes of mediation

A

Dispute is resolved and outcome can be enforced in court if parties formally agree

If mediation fails, wronged party could sue in the courts

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35
Q

What is CEDR

A

Centre for effective dispute resolution in London- family mediation association who offers mediation services for a range of family matters

36
Q

How does conciliation operate

A

Neutral third party helps to resolve a dispute

Conciliation plays more active role than mediator- suggesting ground for compromise and best option for reading a settlement

37
Q

Possible outcomes of conciliation

A

Dispute is resolved and outcome can be enforced through courts if parties formally agree

If conciliation fails, wronged party could sue in the courts

38
Q

Types of cases solved by conciliation

A

Commercial cases between businesses

39
Q

What is ACAS

A

Give impartial help and provide a conciliator in employment disputes

40
Q

How does arbitration work

A

PArties agree to let a neutral third party make a binding decision

If there is a written agreement to use arbitration then parties usually have to use arbitrator rather than judge- such as a clause in contract (Scott v Avery clause)

Way in which arbitration operates left entirely to parties: may opt for paper arbitration/arbitration hearing with oral arguments and witnesses

Parties free to agree on no of arbitrators and on appointment procedure- arbitrator usually expert in subject involved in dispute

41
Q

Possible outcomes of arbitration

A

Award is usually final and can be enforced in court

In limited circumstances award can be challenged in court on a point of law

42
Q

Types of cases which use arbitration

A

Common for consumer contracts and increasingly popular in commercial cases

43
Q

Advantages of negotiation

A
  • completely private and least formal method
  • quickest and cheapest if lawyers aren’t used
  • most cases settled out of court
44
Q

Disadvantages of negotiation

A
  • outcome not certain

- lawyers may be used and the longer this lasts the more it costs

45
Q

Advantages of mediation/conciliation

A
  • cheaper, quicker and less formal than courts
  • where business is involved, decisions based on commercial common sense than what law strictly requires- easier for parties to continue in business with each other
  • avoid winner/loser outcome of a court case
  • parties have control over resolution process and can stop at anytime
46
Q

Disadvantages of mediation/conciliation

A
  • no guarantee that matter will be resolved and may be necessary to go to court- cost and delays
  • without skilled mediator/conciliator it can become a bullying exercise- weaker party not able to stand up to own rights
  • amounts paid in settlements often lower than amounts awarded by courts to successful claimants
47
Q

Advantages of arbitration

A
  • dispute resolved more quickly than court hearing
  • usually cheaper than court- expensive witnesses not needed to be called if arbitrator is an expert
  • usually outcome is certain and award is final and can be enforced through courts
  • parties have freedom to make own arbitration agreement and decide on formality themselves
48
Q

Disadvantages of arbitration

A
  • parties may not be on equal footing as regards to ability to present their case- legal aid not available and may disadvantage individual who can’t afford lawyer
  • professional arbitrators come with expensive fees
  • rights of appeal to courts limited
  • delays for commercial arbitration nearly as great as those in court if professional arbitrator and lawyers used
49
Q

List the advantages of using ADR

A
  • cheaper than court
  • quicker than court
  • parties in control
  • parties can go on doing business with each other
50
Q

Why are methods of ADR cheaper than using courts

Advantages of ADR in more depth

A

Unlikely that parties will use a lawyer so it saves cost

Most expensive is arbitration where lawyers are sometimes used but this is still cheaper than a court case

51
Q

Why are parties in control with most forms of ADR?

Advantages of ADR in more depth

A

Negotiation, mediation and conciliation- parties can choose to stop at any time

Agreement only reached if both sides accept it

52
Q

Why are parties able to go on doing business with each other using ADR
(Advantages of ADR in depth)

A

Parties come to an agreement whereas court proceedings end with one party winning and one losing

Likely to make parties bitter about dispute

53
Q

List disadvantages of using ADR

A
  • courts have greater powers
  • courts ensure fair process
  • civil courts allow appeals
  • legal aid more available for courts than ADR
54
Q

Why do the courts have greater powers than ADR?

Disadvantages of ADR in depth

A

Only through the civil courts can a party effectively force the other side to resolve a dispute

Courts have greater powers to enforce their decisions

55
Q

Why are civil courts more fair than ADR

Disadvantages of ADR in depth

A

Civil courts ensure fair process supervised by a judge who is a trained and qualified expert in law/legal procedure

56
Q

Why is it a disadvantage of ADR that you can appeal from civil courts

Disadvantages of ADR in more depth

A

Limited rights of appeal with arbitration on a point of law but such appeals are rare

57
Q

Why is legal aid not really available for ADR

DISADVATAGES OF ADR IN DEPTH

A

Availability of legal aid for civil cases greatly reduced in recent years

More widely available for court case than ADR

58
Q

Who have tribunals been set up by

A

Parliament

59
Q

Why have tribunals been set up

A

To operate alongside the court system so that people can enforce the rights from social and welfare legislation

60
Q

Examples of types of tribunal cases include disputes over a persons right to:

A
  • claim disability living allowance

- claim redundancy payments

61
Q

What type of disputes do tribunals hear other than social and welfare legislation disagreements

A

Hear disputes where there has been professional misconduct e.g. Police and solicitors

62
Q

Can the parties in tribunal cases go to court to resolve their dispute

A

No. The tribunal must be used instead

63
Q

Which act created a first tier tribunal and upper tribunal

A

Tribunals, courts and enforcement act 2007

64
Q

How many chambers does a first tier tribunal have

A

7

65
Q

What do first tier tribunals hear

A

Relevant civil case

66
Q

How many chambers does an upper tribunal have

A

4

67
Q

What does an upper tribunal hear

A

Appeals

68
Q

Who are first tier cases heard by

A

Tribunal judge and 2 lay members with relevant expertise in some cases

69
Q

What must both sides be able to do in tribunals

A

Be able to put their case forward

70
Q

Examples of more formal tribunals

A

Employment and asylum

71
Q

How is formality ensured in some tribunals

A

Witnesses giving evidence on oath and being cross examined

72
Q

Are all tribunals formal?

A

No some operate in a less formal way

73
Q

What is the decision of the tribunal

A

Binding and enforceable through the courts

74
Q

Will there be right to appeal from tribunals

A

Maybe based on legal reasons

75
Q

Where do first tier tribunals appeal to

A

Upper tribunal

76
Q

Where do upper tribunal appeals go

A

To court of appeal and finally to Supreme Court

77
Q

List 4 advantages of tribunals

A
  • cheaper than court
  • short and usually dealt with in one day
  • informal
  • lay members usually experts in the type of case heard
78
Q

Why do tribunal hearings not involve the costs associated with court hearings

Advantages of tribunals in depth

A

Applicants are encouraged to represent themselves and not use lawyers

Applicant need not fear a large bill if they lose the case

79
Q

Why is it that tribunal hearings are short

Advantages of tribunals in depth

A

They were set up to prevent the overloading of the courts with the extra cases that social and welfare rights claims generate

80
Q

Why are tribunal hearings more informal than court

Advantages of tribunals in depth

A

Parties encouraged to present their own case rather than use a lawyer and most cases heard in private

81
Q

Why is the presence of lay members an advantage in tribunal hearings

Advantages of tribunals in depth

A

Two lay members sit to hear the case with the legally qualified tribunal judge

Lay members are experts in the type of case being heard- this gives them good knowledge and understanding of the issue in dispute

82
Q

List 4 disadvantages of tribunal hearings

A
  • legal aid not available
  • delays
  • more formal than ADR
  • chair of tribunal may exert influence on other panel members
83
Q

Why is lack of availability of legal aid a disadvantage of tribunals

Disadvantages of tribunals in depth

A

May put applicant at a disadvantage if other side uses a lawyer

84
Q

Why can there be delays in tribunal hearings

Disadvantage of tribunals in depth

A

Large number of cases dealt with by tribunals

Use of lay members add to problem as they only sit part time

If a case is complex and lasts several days, this can lead to proceedings being spread over a number of weeks/months

85
Q

Why are tribunals formal in comparison to ADR

Disadvantages of tribunals in depth

A

Place is unfamiliar and the procedure can be confusing for the individuals presenting their own case

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