Chapter 1 Evaluation Flashcards
ADVANTAGE - civil courts
Point: The case will be presided over by a qualified Judge, whether in the county court or High court. Judges are experienced, qualified lawyers who can deal with complex legal matters. They will apply established rules of evidence and procedure to ensure the case is dealt with fairly and without favouring one side or the other. When giving their decision on liability, judges provide reasoned opinions so the parties can see how the decision was reached.
Evidence: N/A
Explain: This means that using the civil courts is a fair and trusted way to deal with disputes. The judge is impartial and a decision on liability is based purely on evidence and the legal arguments put forward. \
ADVANTAGE- civil courts
Point: Reasoned judgements can be studied for accuracy of the law used by a judge to reach a decision. If there are inaccuracies, there is a clear, structured appeal route. Appeals can also be made against the amount of compensation.
Evidence: N/A
Explain: This gives parties the liberty to explore if their judgement was lawful. Having a good structured appeal route is effective as the parties can have the chance to challenge the decision and potentially bring about greater justice.
Link: This is an advantage of using the civil courts because, the right of appeal ensures that as far as possible, courts arrive at the right decision. The decisions of appellate courts are fully reasoned too.
ADVANTAGE- civil courts
Point: A judge will allocate a defended case at any early stage to the most suitable track and court. It will be case managed through the process to a court hearing to minimise delays. Both parties will know in advance, the number of witnesses allowed and the length of the hearing.
Evidence: N/A
Explain: This allows the court process to be quick and efficient. The three track system allows for cases to be dealt with quickly as each case is allocated to a track depending on the value. This adheres to Lord Woolf’s reforms which stops time wasting in the Civil Courts.
Link: =This is an advantage of using the civil courts because each case is aimed to be dealt with as soon as possible and therefore the parties will not have to wait for justice.
COUNTER: However, even with the three track system, there can be considerable delays in completing the preliminary stages of a claim. There is often a delay in setting a hearing date after these stages are completed. This means that the Civil courts have more delays then what is aimed.
ADVANTAGE- civil courts
Point: A legally binding and enforceable decision will be made by the judge. The parties are guaranteed a resolution at the end of the hearing and an enforceable remedy is guaranteed.
Evidence: N/A
Explain: This means that disputes are guaranteed to be resolved for parties. This is especially reassuring for parties who have tried other alternative dispute resolution and have failed to come to an agreement.
Link: this is an advantage of using the civil courts because with enforceable decisions cases can be dealt with for good and further disputes are less likely to arise.
DISADVANTAGE- civil courts
Point: The rule in civil cases is that the loser pays the winner’s costs as well as their own. As a result, the costs of taking a case to court can be more then the sum claimed. This is especially the case in the High Court. There is a need for lawyers to be used in complicated cases, whose time has to be paid for.
Evidence: N/A
Explain: This means that many people who can not afford representation and the costs of another parties, then they will be at a disadvantage. This makes the Civil courts to be seen as unfair, due to people being deterred because of expenses.
Link: This is a disadvantage of using the Civil Courts, as the justice system should be open to all people and if the costs are higher then the claims then there is no overall point in using the Civil Courts.
DISADVANTAGES- civil courts
Point: Even with the three- track system, there can be considerable delays in completing the preliminary stages of a claim. Once these stages are completed there are further delays in arranging a hearing date. Some complicated cases may take several years to resolve.
Evidence: N/A
Explain: These delays prevent the court system from being efficient and although Lord Woolf’s recommendation of the three- track system helps allocate a case to a track depending on value is used it does not stop delays.
Link: This is a disadvantage of using the Civil Courts because with the knowledge that their claim will be subjective to extensive delays, more people will be put of using the civil court system. Faced with ever growing delays, injured people will, more then ever , to accept low ball offers from defendants.
Counter: However, despite delays, the civil courts do allocate a defended case at an early stage, to the most suitable track and court. It will be case managed throughout the process to minimise delays.
DISADVANTAGE- civil courts
Point:a claimant can only apply to their lawyer for a no- win no- fee arrangement in personal injury claims.
Evidence: claims are usually only took if there is a 75% chance of winning
Explain: A lawyer will also only agree to such an arrangement if the claim stands a high chance of succeeding. If the lawyer decides there is a low chance of success then a claimant must fund the claim from their own resources. Claimants in other cases will have to accept responsibility for their lawyer’s fees and hope they can win the case and recover their costs from the loser, in addition to any compensation.
Link: this is a disadvantage of using the civil courts because, many people won’t be able to get a no win no fee arrangement as their claim has not got a high chance of succeeding. This makes the civil courts not accessible or fair .
DISADVANTAGE-civil courts
Point: except in small claims, it is difficult for a claimant to take a case without the assistance of a lawyer.
Evidence:N/A
Explain:This is due to the requirements of pre-action protocols, the civil procedure rules and the formal nature of hearings. Failure to observe these rules may result in the claim being dismissed. More complicated rules apply if an appeal is required.
Link: this is a disadvantage of using the civil courts because it once again makes the system in accessible to many people who can not afford representation. People cannot represent themselves as they lack the legal knowledge so only a minority can afford to take their claim to court.
ADVANTAGE- alternative dispute resolution
Point: using a method of ADR is less formal then using the courts.
Evidence: negotiation can involve just the parties themselves. In mediation and conciliation, the parties are encouraged to reach a settlement themselves. In arbitration, the parties can set the form of the process.
Explain: this makes the whole process of using a form of ADR less confrontational and complicated. This is especially a good alternative to the civil courts if business relationships are wanted to be maintained.
Link: this is an advantage of ADR as a less formal process can create a relaxed setting where a settlement can be made between the parties.
ADVANTAGE- alternative dispute resolution
Point: One advantage of ADR is that lawyers are not encouraged.
Evidence: N/A
Explain: They are not encouraged because the processes are flexible and less formal. There is no rule that the loser pays the winners costs, this will mean lower costs of the parties and less confrontation. There will not be a winner/ loser situation and the parties can continue a personal or business relationship.
Link: this is an advantage of ADR because lawyers are expensive and without the need for them more people can have their dispute resolved. Unlike the courts, people can represent themselves making it a more accessible process.
ADVANTAGE- alternative dispute resolution
Point: it is quicker and easier to arrange a resolution than going through the courts.
Evidence: N/A
Explain: if there is a hearing, likely to be in private and there will be little or no publicity to embarrass the parties
Link: this is an advantage of using ADR because using the civil court system involves delays in arranging hearings and completing preliminary stages. Claimants can quickly resolve their dispute with ADR and personal or business relationships can return to normal.
ADVANTAGE- alternative dispute resolution
Point: especially in negotiation, mediation and conciliation the decision does not have to be strictly legal.
Evidence: N/A
Explain: the decision is more likely to be based on commercial common sense and compromise.
Link: this is an advantage of using ADR because it will likely preserve the future relationship between the parties .
Counter :however , it can be argued that the decision not being strictly legal is a negative as the parties are not legally enforced to carry out the decision and if. One party wants to withdraw from the agreement they can.
DISADVANTAGE- alternative dispute resolution
Point:in all forms of ADR, except tribunals, the parties cannot be forced to engage in in the process and one of them may decide not to.
Evidence: N/A
Explain: the process will have to be abandoned and court action may have to be required to resolve the dispute, which will result in further delay and cost.
Link: this is a disadvantage of using the ADR because it relies on both parties being willing to to settle the dispute which is not always the case. Therefore using a method of ADR can be a waste of time.
Counter: however it can be argued that the fact that the parties can withdraw at any time is a good thing. This is because a decision will not be enforced on one of the parties and they can often deal with the dispute themselves.
DISADVANTAGE- alternative dispute resolution
Point: no funding is available for claimants using ADR.
Evidence:N/A
Explain: this may put an unrepresented claimant at a disadvantage in arbitration and employment tribunals, where a business employer is likely to be represented
Link: this is a disadvantage of using ADR because it makes the process unfair. One negative of using the courts is due to costs of representation and with no funding in alternative dispute resolution then it is just as unfair.
DISADVANTAGE- alternative dispute resolution
Point: there are limited rights of appeal for most forms of ADR.
Evidence: in arbitration an appeal can only be made on the grounds of a serious irregularity. With employment tribunals, an appeal can only be made if there is a point of law involved.
Explain: any appeal is likely to require a lawyer and involve more costs for a claimant.
Link: this is a disadvantage because if a party believes they have been given an unjust decision then they only have limited rights to appeal making it unlikely for their appeal to be successful.
DISADVANTAGE- alternative dispute resolution
Point: if an unexpected legal issue appears in either arbitration or an employment tribunal then an unrepresented claimant may be at a disadvantage. A non legally qualified arbitrator will not be able to resolve it.
Evidence: N/A
Explain: this is not the case in the civil courts where a qualified judge will be able to deal with complex issues of law.
Link: this is a disadvantage of ADR because using a method of it is not suitable if complex issues of law involved.
ADVANTAGES- employment tribunals
- Claims will be heard by a specialist panel
- ACAS will encourage the parties to settle the claim before a hearing
- The hearing will often be heard without public or press present. This will ensure confidentiality for both parties
4.The employee can be represented by a non- lawyer including a trade union representative. It will then be cheaper. Party’s also pay their own cost which makes it cheaper.
DISADVANTAGES - employment tribunals
1.a claim has to be issued quickly after the issue arises (three months)
2.funding is not available. An employee may be at a disadvantage against an employer who can pay for legal representation
- Appeals are limited to issues of law
4.there may be delays in setting hearing dates.
ADVANTAGE-negotiation
Point: little to no cost and there is no need for lawyers
Evidence:N/A
Explain: negotiation can be carried out in simple ways such as over the phone or merely from face to face talking. Representatives are not needed because the parties can speak for themselves.
Link: this is an advantage because many people can not afford representation but need to get their dispute resolved. Negotiation is informal and this creates a relaxed environment for the parties to reach a settlement.
ADVANTAGE- negotiation
Point: relationships between the parties are preserved.
Evidence: N/A
Explain: especially in the case of businesses they can protect their reputations. Relationships are preserved as they are simply talking through the dispute and they are not going to court which would be more confrontational.
Link: this is an advantage of negotiation because relationships can be continued in the manner before the dispute. Without going to court, the parties are less likely to become resentful.
ADVANTAGE- negotiation
Point: the parties themselves are in control
Evidence:N/A
Explain: a decision is not controlled by a third party as the parties can have full control of the process and can withdraw at any time.
Link: this is an advantage of negotiation as it is a just way of reaching a settlement, by letting the parties decide how they reach a decision.
Counter: however, it can be argued that if the parties are control then either one could believe they are right and not be will to settle. As there is no third person to control the process, the parties may be hostile towards each other.
ADVANTAGE- negotiation
Point: it can be straightforward contact between the parties.
Evidence: N/A
Explain: this means that negotiation is unlikely to be time wasting as it can be carried out quickly and informally. It also makes negotiation more accessible and adheres to lord Woolf’s changes as he wanted to encourage alternatives to the courts. Straightforward contact can be writing or over the phone.
Link: this is an advantage of negotiation because it can be carried out easily and is accessible for many people.
DISADVANTAGE- negotiation
Point: one of the parties may not be prepared to negotiate with the other
Evidence: N/A
Explain:in negotiation, for it to be effective it requires both parties to be willing to take part and wanting to reach an agreement. An existing relationship is Already required
Link: this is a disadvantage of using negotiation because if one party is un willing to to negotiate then it is near impossible to come to an agreement and therefore the process is pointless.
DISADVANTAGE- negotiation
Point: it can take a while
Evidence: N/A
Explain: negotiations can take a long time to go undergo and may result in a settlement “at the door of the court” which is a last minute settlement.
Link: this is a disadvantage because negotiation can come with delays that reduce the efficiency of the process
Counter: however it can be argued that it is good that negotiations can take place at any point throughout the dispute which could result in a good settlement
