Alternative Dispute Resolution

Question 1

What are the details of the small claims court (AO1)?

Answer 1

Claims up to 10K, Personal Injury £1.5K
Informal
Heard by a district judge
Less Legal argument, lawyers discouraged
2-3 hours max
Limited witnesses
Similar process to arbitration

Question 2

What are the details of the fast track (AO1)?

Answer 2

Claims between 10K and 25K
Timetable for disclosure of documents and witness statements
Trial date in 30 weeks
Simple procedure for speed
Limit expert witnesses
One day max in open court
Can have legal representation

Question 3

What are the details of the multi-track (AO1)?

Answer 3

Complicated claims over 25K or those over 100K
Over 100K will be heard in the High Court
Complex cases may have a case management conference
Trial dates can be deferred
Human rights issues, Asbestos lung disease, clinical negligence claims, abuse or neglect of children or vulnerable adults

Question 4

What are the details of the intermediate track (AO1)?

Answer 4

Claims between 25K and 100K
Monetary relief only
No longer than 3 days
No more than 2 expert witnesses per party
4 bands of complexity to assign cases to, to be quicker and cheaper
Simplified procedure
Stricter case management

Question 5

What are the details of the County Court (AO1)?

Answer 5

Try claims up to 100K
300 in England + Wales
Personal Injury up to 50K
Hear negligence claims
Other tort-based claims
Debt claims and consumer disputes
Housing claims - landlord + tenancy issues
Bankruptcy issues
Mainly heard by a circuit judge - if straight forward a district judge
Judge decides who is liable, if there is any compensation or remedy and who pays the costs

Question 6

What are the details of the High Court (AO1)?

Answer 6

Heard in open court by single High Court Judge
Split into 3 divisions: King’s Bench, Chancery, Family
Judge decides who is liable, if there is any compensation or remedy and who pays the costs
Normally for cases over 100K or over 50K if they are complicated

Question 7

What are the details of the King’s Bench Division (AO1)?

Answer 7

Largest division - hears wide range of cases
Will hear cases not suitable for County Court - Amber Heard, Johnny Depp case
Claims over 100K
Claims that have a complicated issue of law involved
Specialist Courts - Administrative Court - Application for judicial review, case stated appeals decided at Magistrates or Crown and Circuit Commercial Courts

Question 8

What are the details of the Chancery Division (AO1)?

Answer 8

Disputes relating to business, property or land over 100K
Disputes over trusts
Contentious probate claims
Disputes over partnership matters

Question 9

What are the details of the Family Division?

Answer 9

Often heard in private - sensitive
Welfare of children - made a ‘ward of the court’ - Children Act 1989
Appeals from lower courts and complicated family cases
Foreign element like international child abduction, forced marriage and FGM

Question 10

What are the advantages of the civil courts (AO3)?

Answer 10

Certainty
Legal Knowledge
Formality and History
Appeals
Enforcement

Question 11

What is the certainty advantage of the civil courts (AO3)?

Answer 11

Rules of evidence are clear, and procedures are formal, judicial precedent applies so many disputes can be resolved before reaching court as the outcomes are clear and cases are treated in a similar manner

Question 12

What is the Legal Knowledge advantage of the civil courts (AO3)?

Answer 12

Judge oversees - has knowledge and experience to deal with complex legal matters, can give reasoned decisions. Can allocate cases to the correct track in the courts

Question 13

What is the Formality and History advantage of the civil courts (AO3)?

Answer 13

This can promote respect for the law - open system of justice, allows the public to be aware of cases and industries that they should if they pose a problem. Allows for cases to be allocated early to the correct track

Question 14

What is the Appeals advantage of the civil courts (AO3)?

Answer 14

Grounds for appeal are clear

Question 15

What is the Enforcement advantage of the civil courts (AO3)?

Answer 15

Courts have greater powers to enforce their decisions

Question 16

What are the disadvantages of the civil courts (AO3)?

Answer 16

Costs
Delays
Unequal Bargaining Positions
Adversarial Process
Lack of Privacy
Precedent set - but no guarantee

Question 17

What is the Costs disadvantage of the civil courts (AO3)?

Answer 17

Costs can sometimes be more than the claim - Woolf found a claim for 2K with costs of 70K. Lawyer fees are expensive, and appeals add to the costs - can enter CFA to reduce costs but will need insurance

Question 18

What is the Delays disadvantage of the civil courts (AO3)?

Answer 18

55 Weeks in the small claims court and 76 weeks in the fast and multi-track cases which is too long and too expensive - witnesses may start to forget details

Question 19

What is the unequal bargaining positions disadvantage of the civil courts (AO3)?

Answer 19

Large companies against an individual are unfair as big firms tend to have legal teams - often emotional attachment and fear from the individual. Firms try to make an ‘out of court settlement’ for a lower value than the claim which is often accepted as it is quicker and avoids costs

Question 20

What is the adversarial process disadvantage of the civil courts (AO3)?

Answer 20

Cross examination by lawyers can be intimidating and aggressive as it encourages a battle between the 2 parties and is not best when future relations are needed like in divorce cases or commercial disputes - Many European countries don’t have this, France, so why should we

Question 21

What is the lack of privacy disadvantage of the civil courts (AO3)?

Answer 21

Courts are open to the public and press, sometimes disputes would be better solved in private like family matters

Question 22

What is the ‘precedent set - but no guarantee’ disadvantage of the civil courts (AO3)?

Answer 22

No guarantee of outcome until judge makes the decision and also room for appeals

Question 23

What are the 3 parts to the civil pre-trial procedure (AO1)?

Answer 23

Pre-action protocol
Issuing a claim
Defending a claim

Question 24

What is the pre-action protocol part to the civil pre-trial procedure (AO1)?

Answer 24

Explain the conduct and set out the steps the court would normally expect parties to take before court action
Want to resolve as many issues as possible before court
Base the decision of the court on what the compensation claim is - judge will assign this

Question 25

What is the issuing a claim part to the civil pre-trial procedure (AO1)?

Answer 25

Claim form N1: Completed with the names and addresses of the parties, brief details on the claim and money being claimed Claim can be filed at the County Court Office, High Court is high value, online for debt claim Fee charged dependant on the value of the claim

Question 26

What is the defending a claim part to the civil pre-trial procedure (AO1)?

Answer 26

The court will send or serve the claim to the defendant who can then: 1. Admit the claim and pay the full amount 2. Admit the claim and pay in instalments 3. Dispute the claim and file a defence as to why it should not be paid 4. File an acknowledge of service asking for more time to put together a defence

Question 27

What are the reforms of the civil justice system?

Answer 27

Movement to online system - Biggs review Integration of High and County Courts Inquisitorial System Reform of Compensation for Personal Injury

Question 28

What are the for and against points for: Movement to online system - Biggs review?

Answer 28

+: Cheaper, Quicker, less stressful -: Lack of justice, Lack of transparency as it is hard to find the judge online

Question 29

What is the point of integration of High and County Courts?

Answer 29

Avoids time wasting moving between courts Short term disruption but would lead to long term cost savings Labour Consultation Paper 2005 found this Unified court would allow cases to be based on complexity Solicitors and Consumer Organisations support Judges and Barristers oppose Sir Henry Brooke said they should not unify

Question 30

What is the point of an inquisitorial system?

Answer 30

It is less aggressive There would be less tactics It would be less of a battle format Judge will have a more investigative role Unlikely to fully move away from adversarial

Question 31

What is the point of reform of compensation for personal injury?

Answer 31

Include a no-fault system - Wouldn't happen as it goes against the fundamental principle of fault in law and would leave the victim with no compensation for PI which is an injustice

Question 32

What are the details of online disputes?

Answer 32

Money Claim Online - set up in 2002 Debt recovery up to 100K - Rent arrears, unpaid fees etc Fees paid electronically Most cases undefended and claimants apply for online judgement Defence can use the online service to acknowledge service and lodge a defence If the case is undefended it reverts to normal old fashioned paper litigation Service available 24/7 - popular with creditors

Question 33

What are the 3 stages to online disputes?

Answer 33

1. Automated interactive process to identify issues and provide documentary evidence 2. Conciliation and case management by case officers 3. Judge resolution on screen

Question 34

What are the issues with online disputes?

Answer 34

Issue is these are civil servants not judges making these decisions. Phone and face-to-face meetings, case officers taking over a judge's role, not part of the independent judiciary. Not all people have the access to the technology Does it help the access or create more of a barrier?

Question 35

What are the AO1 points for negotiation?

Answer 35

Only form of ADR with no 3rd party Parties communicate directly to reach an agreement Can be face-to-face but often over the phone or emails May have solicitors No fixed procedure Needs compromise to be successful Often first type of ADR tried Neighbour disputes often solved through negotiation Large firms will use negotiation No costs unless lawyers involved

Question 36

What are the advantages of negotiation?

Answer 36

Speed - Often solved in minutes Cost - Cheapest form of ADR unless lawyers are involved Privacy - Conducted in private meaning relationships can be maintained Lack of Formality - Less formal than court, discussions can be held in a safe environment

Question 37

What are the disadvantages of negotiation?

Answer 37

Imbalance of power - One party may have less financial power which leads to bullying, large firms have their own legal teams constantly dealing with claims whereas inexperienced individuals will come up short Lack of legal expertise - If no lawyers there may be no legal knowledge at all which may result in future problems and disputes Enforceability - May not be clear as to whether the parties have entered a binding contract which is enforceable in court

Question 38

What are the AO1 points for mediation?

Answer 38

Neutral third party acts a go-between to help 2 disputing parties Often keep both parties separate - deliver offers and counteroffers, takes the heat out of the situations Mediator defines issues, but cannot offer solution - this must come from the parties Voluntary process, only legally binding if both sides agree Legal representation an option but discouraged A party would have to pay their own legal costs Relationships and divorce commonly use mediation The Family Law Act 1966 encourages couples separating to use this Relate has trained counsellors to do this but they are not always legally trained. Aim to create non-hostile future relations which cannot happen in court. Have 70 centers nationally and see 150,000 people a year

Question 39

What is a famous example of mediation?

Answer 39

Paul McCartney and Heather Mills went to mediation but ended up in court

Question 40

What are the advantages of mediation?

Answer 40

Speed and Convenience Empowerment Efficient Cheap Expertise Privacy

Question 41

What are the disadvantages of mediation?

Answer 41

Imbalance of power Lack of legal expertise 20% reach no agreement Enforceability

Question 42

What are the AO1 points for conciliation?

Answer 42

Similar to mediation but counsellor takes a more pro-active approach Make suggestions for settlement Actively comment on the process to help process - help them engage Also, a neutral third party Legal advisors may be present - parties do not need to meet face to face Decisions can be made legally enforceable if parties agree Failure to reach a decision will result in the dispute moving onto a tribunal or court

Question 43

Who are the expert conciliators?

Answer 43

ACAS

Question 44

What do ACAS run?

Answer 44

A conciliation scheme for industrial disputes - they will provide an expert for employment disputes

Question 45

What are the advantages of conciliation?

Answer 45

Speed and Convenience Informal Expertise Privacy Pro-Active Cheap Avoids adversarial process

Question 46

What are the disadvantages of conciliation?

Answer 46

Imbalance of Power Lack of legal expertise 20% reach no agreement Enforceability

Question 47

What is a famous example of conciliation?

Answer 47

Junior Doctor's Contract Deal in May 2016 used ACAS to resolve the issues Talks started in December 2012

Question 48

What are the AO1 for arbitration?

Answer 48

Neutral third party hears both sides of dispute and makes a decision Both parties must voluntarily agree to arbitration Arbitrator and venue is paid by the parties Arbitrator is normally and expert in the field Arbitration Act 1996 Award made is binding for both parties High court appeals for 'serious irregularity'

Question 49

What does the Arbitration Act 1996 state?

Answer 49

The dates and powers of arbitrator are decided before the venue

Question 50

What are examples of arbitration?

Answer 50

Small Claims Court ACAS Consumer Arbitration (ABTA) Commercial Arbitration

Question 51

What is the Scott vs Avery clause?

Answer 51

It commits both parties to arbitration and will be upheld by the courts

Question 52

What are the advantages of arbitration?

Answer 52

Parties retain more control Proceedings held in private Quicker and cheaper than court Arbitrator is an expert in their field

Question 53

What are the disadvantages of arbitration?

Answer 53

No legal aid available Limited appeals Difficult to enforce onwards Inconsistent decisions as no precedent Lack of awareness or popularity - there has been no great increase in cases since the Woolf reforms in 1999

Question 54

What is the AO1 for tribunals?

Answer 54

Deal with 6x as many cases as civil courts Have own jurisdiction, if case falls under it then it will be taken to tribunal initially 2 lay people and a judge More flexible Inquisitorial not adversarial Held in private No legal aid Lawyers not essential Chambers follow the same procedures Decisions must be followed Aims is to give speedy justice that is independent of the government Either side may appeal within 42 days for an Employment tribunal

Question 55

What comes from the Tribunals, Courts and Enforcement Act 2007?

Answer 55

First tier has 6 chambers like Health, Education and Social Care Chamber and The Immigration and Asylum Chamber Act created the Upper tier with 4 chambers to hear appeals from the First Tier - include the Administrative Appeals Chamber and the Immigration and Asylum Chamber

Question 56

What are the points for employment tribunals?

Answer 56

Deal solely with employment issues Has to be brought within 3 months and 1 day of the issue ACAS is contacted Claimants often seek trade union advice Detailed reasons are then set out and passed to the employer Tribunal will have a judge and a representative from both sides Short hearing Can be public Try to encourage settlement but if not then the tribunal can award compensation If the claim is lost, the employee does not pay the employer fees only their own If the employee wins then the employer pays for it all Within 14 days they can ask for the tribunal to review its decision if they are not happy

Question 57

What are the advantages of tribunal?

Answer 57

Speed Cheap Informality Flexible Specialisation Case load

Question 58

What are the disadvantages of tribunals?

Answer 58

Lack of public funding Inconsistency Lack of openness Lack of reasons Too complex Appeals

Question 59

What are the advantages of ADR as a whole?

Answer 59

Cheap compared to the courts Quick compared to the courts Private and less formal = less intimidating Experts are part of the process Avoids adversarial process = maintains future relations

Question 60

What are the disadvantages of ADR as a whole?

Answer 60

Inconsistency Cannot force parties into ADR Lack of legal expertise Enforceability Imbalance of power Lack of funding

Question 61

What are the details of appeals in the civil court?

Answer 61

Often based on a legal argument, error of fact, error of law, unfair procedure etc. Appealed up to the next court in the hierarchy Appeal has to be made within 21 days of original hearing An appeal can leapfrog the next court in the hierarchy is the appeal is particularly complicated or of national importance (Supreme Court)

Question 62

What are the usual routes of appeal?

Answer 62

District judge in the county court goes to a circuit judge in the county court Circuit judge in the county court goes to a High Court Judge in the High Court High Court Judge in the High Court goes to the Court of Appeal Court of Appeal goes to the Supreme Court