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Flashcards in Civil Courts + ADR Deck (76):
1

what does civil law include?

law of tort

contract law

family law

2

when may a civil claim arise? what may it involve?

if an individual or business believes their rights have been infringed in some way

may involved claiming compensation or getting an injunction

3

what are the main civil courts?

county court

high court

4

info on county court

found in most major towns

staffed by circuit and district judges

no jury except in cases involving defamation, malicious prosecution or false imprisonment

try nearly all civil cases including.....
• all contract and tort claims up to £100,000
• personal injury claims up to £50,000
• disputes over equitable matters up to £350,000
• divorce cases
• bankruptcy cases

5

basic info on high court

contains three divisions each dealing with certain types of cases; Queen’s Bench, Chancery and Family

6

Queen’s Bench Division in the HC

deals with biggest workload

contract and tort cases over £100,000

some complex multi track cases over £25,000 (transferred from county court)

criminal case appeals by way of case stated from the MC

applications for judicial review and habeus corpus

4 courts; commercial, technology and construction, admiralty, mercantile

7

Chancery Division in the HC

deals with business related matters....

• corporate disputes and personal insolvency

• business, trade and industry disputes

• mortgage enforcements

• intellectual property matters

8

Family Division in the HC

a single judge deals with family disputes such as....

• cases involving children (under the Children Act 1989 the court has the power to settle the residency of a child)

• wardship matters

• appeals from family proceedings courts

• cases from the county court

• non contentious probate cases

9

what should be attempted in civil cases?

civil cases should try to be settled through ADR without going to court

10

where do most claims start?

in the county court

11

pre trial procedures in civil cases

FIRST STAGE

claimant will complete the....

• MONEY CLAIM FORM for a fixed amount of money less than £100,000 and against no more than 2 defendants

OR

• N1 CLAIM FORM where C will gives brief details in the claim and it’s value, this will help decide the court and track

pays a court fee to issue claim which is then served on D

12

pre trial procedures in civil cases

SECOND STAGE

once the claim has been served, D can either.....

• ADMIT CLAIM - pays full amount and the case then ends

OR

• DEFEND CLAIM - disputes some of all of the amount claimed, must complete acknowledgement of service form within 14 days, can also make a counterclaim

13

pre trial procedure in civil cases

THIRD STAGE

if D defends the claim then....

• case allocated to a track and a court based on the amount being claimed

• parties also complete an allocation questionnaire

• case management hearings take place to check both parties are ready with evidence and keep to time limits

• court sets date for trial

• if trial is lost then C loses claim and is not awarded damages, if trial is won then damages are awarded to C and the costs will be payed by D

14

what is the track system?

all civil claims are allocated a track depending on the value of claim and complexity of case

the three tracks are small claims track, fast track and multi track

15

small claims track

for disputes under £10,000 and personal injury claims up to £1000

held in the county court usually in private

informal procedure where parties are likely to represent themselves

decisions are made by a district judge

16

fast track

straightforward disputes of between £10,000 and £25,000

held in the county court

more formal procedure where parties are more likely to be represented

decisions are made by a circuit judge

hearings are limited to a day and a restricted number of witnesses are allowed

17

multi track

disputes over £25,000 are held in the county court where decisions are made by a circuit judge

disputes over £100,000 involving complex points can go to the high court where a high court judge will make decisions

very formal procedure in which parties will be represented by experienced advocates

18

what do appeal routes depend on?

it’s possible to appeal against a decision made in a civil case

appeal routes depend on the court the case was held in, the value of the claim and the type of judge involved

19

what is the judge hierarchy?

district < circuit < high court

20

appeals from the county court

• SMALL CLAIMS + FAST TRACK CASES - appeals will be heard by the next judge up in the hierarchy from the judge that initially heard the case (e.g. if the case was dealt with by a district judge then the appeal will be heard by a circuit judge)

• FAST TRACK CASES - a second appeal can be made to the Court of Appeal (Civil Division) in exceptional cases only e.g. if there is an important point of principle or practise. no further route of appeal for fast track cases

• MULTI TRACK CASES - if heard in the county court then appeal goes to the court of appeal and then to the supreme court

21

appeals from the high court

• appeal goes to court of appeal, will involve a point of law and leave to appeal is required

• further appeal from CA to SC on a point of law of general public importance, permission is needed from SC

• possible leapfrog directly from high court to the supreme court if statutory interpretation or precedent is involved, permission for this is needed from the supreme court itself

• currently can still appeal to the CJEU (court of justice of the european union) if involving a point of EU law under article 267 of the TFEU

22

4 advantages of using civil courts (litigation) to resolve disputes

• fair

• expertise

• enforcement

• changes to civil procedure rules

23

4 disadvantages of using civil courts to resolve disputes

• expensive

• delays

• damages future relations

• judges are not technical experts

24

advantages of using civil courts to resolve disputes
FAIR

using civil courts is fair because judges must be impartial which means that everyone is treated the same way

judges control court proceedings which means that the case will be dealt with fairly

furthermore, the allocation questionnaire helps ensure that the case is allocated to the most suitable track

25

advantages of using civil courts to resolve disputes
EXPERTISE

judges make the decisions and they are legal experts with qualifications

those sitting in the county and high court have acquired legal expertise through years of experience regarding civil disputes, the law and the legal system

this means that if a point of law does arise then it can be solved quickly, for example if an issue regarding contract law arose

ensures consistency and efficiency as judges have seen many similar cases before and can deal with them quickly, which is important if complex legal issues are involved

26

advantages of using civil courts to resolve disputes
ENFORCEMENT

the outcome is legally binding which means that the award is enforceable through the courts

decisions made cannot be argued with unless a party chooses to appeal

this also provides certainty that a party will either win or lose a case, allowing them to prepare for either outcome and weigh the costs against the benefits of using a court

guarantees that the matter will be resolved because parties are not at liberty to walk away during court proceedings

27

advantages of using civil courts to resolve disputes
CHANGES TO CIVIL PROCEDURE RULES

the amendments made in 2013 to the civil procedure rules protect parties from excessive costs by ensuring costs are proportionate to the claim

legal aid is also available to those on low incomes and this can support them through their case, allowing more than just wealthy people to have their cases heard and addressed

in ADR, no legal aid is available

28

disadvantages of using civil courts to resolve disputes
EXPENSIVE

using civil courts is very expensive

the cost of going to court might be higher than the amount actually being claimed

bringing a claim to the high court can cost hundreds of thousands of pounds especially since lawyers are needed and the fees for legal professionals are very expensive (around £500 an hour)

furthermore, if a party loses then they may also have to pay the other sides costs

so unless a party is wealthy enough to afford to begin a case or able to obtain a no-win, no-fee agreement they would be unable to afford using civil courts

29

disadvantages of using civil courts to resolve disputes
DELAYS

using civil courts is a very long and time consuming process

the pre trial procedure involves a lot of steps eg claim forms, response from D, allocation, etc

there is usually a wait of a year before the case is even heard

adds to costs

ADR would be quicker and easier to use

30

disadvantages of using civil courts to resolve disputes
DAMAGES FUTURE RELATIONS

taking someone to court damages future relationships

court room is very adversarial and can cause conflict between parties, damaging any hope of maintaining a future relationship whether that is a business or social one

using a court straight away shows that a party is unwilling to try any other option to reach a compromise such as mediation and do not care for preserving future business or social relationships

it’s much easier and simpler to use a form of ADR to solve such matters

31

disadvantages of using civil courts to resolve disputes
JUDGES ARE NOT TECHNICAL EXPERTS

judges are not technical experts so will probably not have any specific expertise on the matter at hand

limited knowledge on the subject matter especially if the issue being disputed is be technical, obscure or requires expert knowledge

therefore, the judge might have to focus solely on the strict application of the law rather than having all the information needed to make an informed decision - this could result in an unfair outcome

32

advantages of the track system

• case management hearings have improved matters such as allocation, ensuring the cases are allocated to the most suitable track, adds to efficiency of process

• rate of settlement prior to case being heard has improved, reaching almost 80% in some areas

• fast track cases have seen reduced delays, this is because the time of trial is limited as well as the number of witnesses allowed, saves time and money

33

disadvantages of the track system

• costs have increased overall due to front loading of costs for all of the tracks

• lengthy process involved, fast track cases can take 48 weeks to get to trial and even small claims can take 29 weeks, multi track cases sometimes take years to reach court and be heard

• courts are under resourced, IT systems are primitive compared with private practice

34

advantages of small claims court

• increase from £5000 to £10,000 means people can use the small claims court to claim for larger amounts rather than having to use the fast track which is more formal and will costs more money as claimant will require lawyers

• does not require a lawyer, parties can represent themselves so do not need to pay large fees to a lawyer, makes it a lot cheaper especially since if they lose they do not have to pay the other persons legal costs

• simple procedure which is quicker, easier, cheaper and less formal than other courts, saves time and money for all involved. judges also tend to help both parties by explaining the case in detail

• greater emphasis on using it as a last resort, parties are often referred to mediation service first before proceeding to court and if this is successful then tine and money will be saved

35

disadvantages of using small claims court

• the increase from £5000 to £10,000 means higher and more complex claims will be made so more people will begin to use lawyers which puts those who cannot afford to hire legal professionals as at significant disadvantage, procedure also takes longer now that more complex claims are involved in the small claims courts

• PI claims and housing repair claims remain unchanged at £1000 which is a limited and low amount

• only around 60% of successful claimants actually revived all of the money awarded by the courts, there seems to be a lack of efficient enforcement, results in more people having to go through the Enforcement of Small Claims Judgments in the CC which only adds to workload

36

what are tribunals?

mini courts operating alongside the court system

enforce rights that have been granted through social and welfare legislation

informal, private and inquisitorial rather than adversarial

a legally qualified tribunal judge and other specific experts sit as a panel and reach an outcome which is enforceable

do not have the option to go to court

37

Tribunals, Courts and Enforcements Act 2007

regulates the tribunal system into a two tier structure

cases begin in the first tier tribunal

appeals go to the upper tier tribunal

38

first tier tribunal

deals with 300,000 cases a year

has 200 judges and 3600 lay members

7 chambers:
• general regulatory chamber - charities, environment, transport
• social entitlement chamber - social security, child support
• health, education and social care chamber - mental health, disability
• immigration and asylum chamber
• property chamber - land, housing
• tax chamber
• war pensions and armed forces compensation chamber

39

upper tier tribunal

deals with appeals from the first tier tribunal

4 chambers:
• administrative appeals
• tax and chancery
• lands
• immigration and asylum

employment tribunal and employment appeal tribunal operate separately from the first and upper tier but has the same status as the other chambers

40

appeal route for tribunals

• appeals go from the first tier to the upper tier

• further possible appeal to the court of appeal and then to the supreme court but only on a point of law

41

composition of tribunals

• FIRST TIER - cases are heard by a panel consisting of tribunal judge and usually 2 specialist lay members (e.g. a medical expert, surveyor)

• EMPLOYMENT TRIBUNAL - involves a person from an employers organisation and a person from an employees organisation

42

tribunal procedure

all chambers follow the same procedure

hearings are more flexible, informal and inquisitorial than the courts. usually held in private

both sides put their case forward

panel asks questions to gather information

legal aid is not usually available

some tribunals are more formal and will have witnesses give evidence under oath or be cross examined (may happen in the asylum tribunal for example)



43

x4 advantages of tribunals

• lower cost

• speed

• expert panel

• informal

44

x4 disadvantages of tribunals

• lack of funding

• delays

• more formal than ADR

• limited appeals

45

advantages of tribunals
LOWER COST

parties are encouraged to represent themselves which means there is almost no need for lawyers

lowers costs significantly as lawyers can be very expensive

furthermore, applicant need not fear a large bill if they lose the case as it’s rare for order of costs to be made

46

advantages of tribunals
SPEED

hearings are usually very short and can be dealt with within a day

saves the courts and parties a lot of time and money

takes workload pressure off of courts

47

advantages of tribunals
EXPERT PANEL

usually two experts sit with the judge

their vast knowledge and experience on issues of the case is every useful and provides expertise that judges may not have

results in a more informed and therefore fair outcome

48

advantages of tribunals
INFORMAL

hearings are informal and usually held in private which makes the whole procedure less intimating for all involved

inquisitorial rather than adversarial, reduces conflict

49

disadvantages of tribunals
LACK OF FUNDING

legal aid is usually not available

this may put one side at a disadvantage especially since the other side is usually an employer or government department that can afford to and do use lawyers

however, legal aid is available for cases involving fundamental human rights

50

disadvantages of tribunals
DELAYS

intention is to deal with cases quickly by the first tier tribunal deals with around 300,000 cases a year

which means there can be delays in getting a hearing

51

disadvantages of tribunals
MORE FORMAL THAN ADR

tribunals are unfamiliar and the procedure can be confusing for individuals presenting their own case

judges are supposed to held establish and explain the case but this does not always happen

52

disadvantages of tribunals
APPEALS

limited appeals that are only available on a point of law

there are also high costs of taking an appeal as lawyers are likely to be required

53

what is ADR?

other methods of resolving a dispute or reaching a settlement between parties without going to court

there are 4 main types of ADR; negotiation, mediation, conciliation and arbitration

54

why is ADR encouraged?

courts can be...
• costly
• time consuming
• damaging to future relations
• open to the public and the press

55

negotiation

parties reach an agreement themselves with no third party

can be face to face, over the telephone or via email

involved continued contact until a resolution is made or fails

successful outcome is an agreement that can be enforced if parties formally agree

56

advantages of negotiation

• parties represent themselves - no need for lawyers which makes it the cheapest method of dispute resolution

• preserves future business relationships - due to informal nature that encourages cooperation

• flexible - can be used at any point during the dispute including up to the court hearing, many methods of negotiation including face to face or via email

• can be enforceable - outcome can be made enforceable if both parties formally agree

57

disadvantages of negotiation

• may be unsuccessful which means parties may still have to use courts to resolve the issue which is very costly and time consuming

• outcome is usually not legally binding unless both parties formally agree

• not suitable for parties who are antagonistic towards each other and are unwilling to cooperate

• parties are responsible for this themselves and repeated unsuccessful attempts may just prolong the issue and waste time and money

58

mediation

a neutral third party (mediator) helps the parties reach a compromise solution

the mediator acts as a facilitator and does not offer an opinion unless asked, they take a passive role

often used relationship situations such as divorce

both parties have control over the resolution process and may withdraw at any time

they must reach an outcome themselves, a resolution cannot be imposed on them

Centre for Effective Dispute Resolution deals with disputes between companies while more local mediation services deal with disputes between neighbours such as noise or harassment

59

conciliation

neutral third party (conciliator) helps the parties reach a compromise solution

conciliator takes an active role by suggesting grounds for settlement

used in industrial disputes such as ACAS in employment law

parties have control over the resolution process and can withdraw at any time

a resolution cannot be imposed in them, they must both agree to it themselves

60

advantages of mediation and conciliation

• parties are in control of resolution process and can withdraw at any time if compromise is not possible

• decision can be based on commercial common sense rather than the strict application of the law, fairer and more convenient for both sides

• preserves future relationships both business and personal as it shows a willingness to cooperate

• avoids adversarial conflict of the court room which makes it less intimidating for both parties

61

disadvantages of mediation and conciliation

• no guarantee that the matter will be resolved, parties unwilling to reach a compromise may then have to go through the courts which adds to costs and delays

• relies on a skilled mediator or conciliator otherwise the whole process is ineffective and the weaker party will be forced to accept compromise

• amounts paid in mediated settlements are often lower than amounts agreed by other forms of ADR or awards from courts

62

arbitration

both parties voluntarily let and arbitrator or panel of arbitrators decide how to resolve their dispute

Arbitration Act 1996 governs agreements to arbitrate

agreement to arbitrate can be made before a dispute arises in a Scott v Avert clause in a contract - may state that if a dispute arises, both parties will arbitrate

arbitrators must be neutral third parties, an agreement will either name one or provide a method for choosing one or the courts may appoint one - Institute for Arbitrators provides trained arbitrators for major disputes

procedure for hearing including the date, time and place is agreed in by parties - hearings can be paper based or a formal court like hearing

awards and binding and can be enforced through the courts

the decision made is final and can only be challenged on the grounds of serious irregularity or a point of law

often used in building or holiday contracts

63

advantages of arbitration

• parties can choose their own arbitrators that can be technical experts, lawyers or professional arbitrators (whatever suits their case best) and if an expert then there is no need to call many expert witnesses as it’s covered by the arbitrator

• flexible - time, venue and procedure can be decided by the parties to suit their commitments

• privacy - not dealt with publicly which means the whole process is much less intimidating and can be resolved more quickly and therefore cheaply

• award is final and enforceable through the courts, guarantees a resolution to the dispute

64

disadvantages of arbitration

• an unexpected legal point may arise which is not suitable for an arbitrator that’s not a lawyer, they would be unable to make an informed decision which can add to costs and delays

• expensive especially for professional arbitrators and even more expensive if parties opt for a formal court like hearing where witnesses give evidence and lawyers represent both sides

• delays may be just as long as those in courts if lawyers and witnesses are used, ADR is not always quicker

• limited rights of appeal, award is final and can only be appealed on a point of law or serious irregularities, courts offer more appeal routes

65

what is ODR and how has it developed?

online dispute resolution

developments in technology have led to ODR services

66

what are some sources offering ODR?

EBAY - disputes arising from purchases

RESOLVER - helps consumers raise complaints with suppliers and retailers

FINANCIAL OMBUDSMAN SERVICE - disputes between consumers and financial service providers

67

EBAY

resolves 60 million disputes using ODR

offers services to deal with disputes arising from purchases and transactions; for example, non payments by buyers or complaints regarding items being delivered damaged

parties involved are first encouraged to resolve the matter themselves via online negotiation, ebay offers clear and structured advice on how to reach a resolution

if this is unsuccessful then ebay offers another resolution service called e-adjudication where parties enter a discussion area, present their arguments and then an ebay staff member determines a binding outcome under its Money Back Guarantee

68

RESOLVER

a free UK based online facility that helps consumers raise complaints with suppliers and retailers

contains email contacts for over 200,000 major organisations including loan companies, restaurants and high street shops

consumer is given online assistance in drafting a complaint, resolver offers form filling exercises and provides standard phrases to use

complaints are then emailed directly to the relevant organisation and that organisation is urged to respond to the resolver address so a case file can be built and maintained on the site

69

FINANCIAL OMBUDSMAN SERVICE

established by statute in 2000

a mandatory ADR body in the financial services sector that resolves disputes between consumers and UK based financial businesses

resolves around 500,000 disputes a year

consumer files a complaint and the complaint is then referred to the service

adjudicators (case handlers) attempt to facilitate a resolution to the dispute usually by contacting parties with their views in the most appropriate outcome

90% of the time both parties agree and dispute is resolved

if either party disagrees they can refer their case to an ombudsman for a final decision - this decision can be rejected by is binding if it is accepted

70

advantages of ODR

• simple and convenient, people can do it from the comfort of their own homes very quickly and easily, no need to use lawyers

• cheap, most sites are free to use and even when there is a charge it is likely to be a set amount known at the beginning which means there’s no hidden costs, also cheap as lawyers are not needed

• allows parties in different countries to communicate which means businesses can operate worldwide

71

disadvantages of ODR

• only suitable for some disputes, some issues such as those involved accidents require face to face evidence and contact that cannot be done online

• must accept decision otherwise they may still need to go to court which is time consuming and expensive

72

online courts: key dates

2016 - online courts proposed

2020 - hoped to be in operation

73

3 stages of online courts

1) interactive online process - identify issue and exchange documentary evidence

2) case manager - carries out conciliation and case management, tries to resolve the dispute

3) judge - if stage 2 is unsuccessful in resolving the case then a judge will do so, documents will be shown on screen and evidence will be given via video or telephone according to case needs

74

advantages of using online courts

affordable

accessible - can be used easily by non lawyers and is especially appropriate for the “internet generation”

quick and simple

consistent and trustworthy

fair and final

costs are proportionate to claim

75

disadvantages of using online courts

not always suitable - eg cases where it’s important to assess truth and reliability of evidence

reduces need for lawyers, losing many jobs in the profession

76

advantages of ADR over using courts to resolve disputes

cheaper - no court cost, reduction or complete removal of need for lawyers

quicker - resolves faster that court system

control - parties are in control of outcome as well as the date and venue for ADR, more flexible to suit both parties which results in a less formal process

expertise - parties can choose their own third party to help which could be a technical expert

privacy - not dealt with publicly, less intimidating for both parties

preserves future relations - avoids adversarial conflict of court room and encourages cooperation while avoiding negative feelings