civil courts and ADR Flashcards
(93 cards)
1
Q
who are civil disputes generally between?
A
individuals, companies and/ or local or national government departments
2
Q
who are disputes between?
A
claimants and defendants
3
Q
compensations can be…
A
damages, injunction or both
4
Q
fill in the gaps: a civil case is a dispute between ———. the ——– makes a claim against the ———. the claimant must find the defendant liable on a ‘balance of ————-‘. this is the ——– of proof in a civil case. the —— of proof is on the claimant to find the defendant ——. if found liable, the defendant must put the claimant back in the position they were before — —-. the —— of the case will usually be awarded ———–.
A
1) individuals
2) claimant
3) defendant
4) probabilities
5) standard
6) burden
7) liable
8) the case
9) winner
10) compensation
5
Q
which two courts are the trial courts for civil disputes
A
county and high court
6
Q
what is the definition of jurisdiction
A
the official power to make legal decisions and judgements
7
Q
what happens in the chancery division of the high court
A
this court hears cases involving company law, tax, insolvency, intellectual property and trusts.
8
Q
what happens in the family division of the high court
A
the court is headed by the president of the family division and hear cases involving the welfare of children under the children act 1989. It also hears matrimonial cases such as defended divorce cases and some probate cases.
9
Q
who by and when was the family court created? what powers does it hold?
A
A family court was created by the crime and courts act 2013. it has both the powers of the high court and county court.
10
Q
what happens in the QBD?
A
it is the largest of the 3 divisions and it headed by the Lord Chief Justice and hears cases involving contract and tort. a jury of 12 may be used in cases of malicious prosecution, false imprisonment and defamation cases. judicial review cases are also heard in this court. the QBD has jurisdiction to hear contract and tort matters over £100,000 and complex multi-track cases transferred from the county court.
11
Q
name the 5 courts of the QBD
A
administrative court, admiralty court, commercial court, circuit commercial courts, technology and construction court.
12
Q
what can the administrative court hear?
A
applications of judicial review, applications for Habeas Corpus, matter relating to the planning court, appeals by way of case stated from criminal cases decided at the magistrates’ court or crown court.
13
Q
what does the admiralty court deal with?
A
shipping and maritime disputes
14
Q
what does the commercial court deal with?
A
claims relating to the transaction of trade and commerce for example, insurance, banking and financial matters
15
Q
what does the circuit commercial court deal with?
A
deals with all types of business disputes which fall outside the remit if the commercial court or the chancery division.
16
Q
what does the technology and construction court deal with?
A
this is a specialist court dealing with domestic and international disputes in the field of technology, engineering and construction.
17
Q
what does the chancery division deal with?
A
disputes relating to business, property or land, intellectual property matters, competition claims under both EU and UK competition law, disputes over trusts, contentious probate, claims relating to partnerships, professional negligence.
18
Q
name the 3 courts of the chancery division
A
the intellectual property enterprise court, the patents court, the insolvency and companies list
19
Q
what cases does the family division have jurisdiction to hear
A
cases where:
a child is made a ward of the court, relating to children under the children’s act 1989, international child abduction under the hague convention, forced marriage, female genital mutilation. plus appeals from family proceedings courts and cases transferred from the county court and applications for financial relief where a divorce has taken place outside England.
20
Q
what is the definition of an appeal
A
the process in which cases are reviewed where parties request a formal change to an official decision. appeals function both as a process for error correction as well as a process of clarifying and interpreting law
21
Q
what is a formal civil court case also known as
A
litigation
22
Q
what types of claims does litigation involve
A
breach or contract, negligence claims, family or land law amongst other areas
23
Q
how does the claimant issue proceedings in a civil court
A
by completing a claims form which is filed in the court and sent to the defendant. usually the claimant is seeking either money in compensation (damages) or an injunction or both. the claim form starts a whole process where documents are exchanged throughout this the claim is supervised by a judge who makes orders as part of his role in active case management. the final trial is heard before a judge, usually sitting alone. negligence claims are no longer dealt with by juries.
24
Q
describe the hierarchy of the civil court system
A
from the top down the supreme court of UK the court of appeal the high court the QBD the family division the chancery division county court tribunuals
25
if an appeal is heard by a district judge then who is the appeal to
a circuit judge in the same county
26
if the case was heard by a circuit judge then the who is the appeal to
a high court judge
27
in S 55 of the access to justice 1999 it states that no appeal may be made to the court of appeal unless the court of appeal considers that … what are the two things that the CoA must consider?
1) the appeal would raise an important point of principle or practice, or
2) there is some other compelling reason for the court of appeal to hear it.
28
from a decision in the high court the appeal usually goes to the court of appeal what type of appeal will occur in rare cases and explain it
leap frog appeal- must involve an issue which is of national importance or raise issues of sufficient importance to warrant the leap frog.
29
explain a further appeal
from a decision of the CoA there is a further appeal to the supreme court but only if the supreme court or CoA gives permission to appeal.
30
state 7 suggestions from the woolf reform regarding civil courts
- just results
- treat litigants fairly
- reasonable costs
- reasonable speed
- understand to those who use it
- wanted to use more IT and ADR to speed up the process
- more co-operation between parties' lawyers and case management by the judge
31
how did the woolf report describe the civil courts
"the doors of the courts are open to all, like the doors of the ritz hotel"
32
what further reforms did Lord Biggs propose in 2016
1) out of hours mediation service in county court
2) online court fir claims up to £25,000
3) case officials to carry out administration work that is currently done by judges
33
what are the 3 stages of the pre-trial procedure
1) pre-action protocol
2) issuing a claim
3) defending a claim
34
explain what happens in the pre-action protocol stage
information to both parties in the case and list of things to be done before trial (if not followed party could incur costs)
35
explain what happens in the issuing a claim stage
once establishing court proceeding court proceedings need to be started (most are negotiated and settled before requiring court), the formal procedure is set in motion (N1 form and pay fee)
36
describe the civil appeals order
```
(from the top)
supreme court
|
court of appeal
| | | |
circuit high multi high
judge court track court
| judge
district |
judge circuit
judge
```
37
explain the 3 track system
this system was regulated by the civil procedure act 1997 to ensure that cases were dealt with more swiftly there are 3 track systems: the small claims track, the fast track and the multi-tracj
38
what is the small claims track for
- less than £10,000 and personal injuries up to £1000
- simple cases
- most resolved in less than 30mins
- county court (lower court)
- district judge
39
what is the fast track for
- between £10,000 and £25,000 and personal injuries over £1000 but less than £50000
- moderately complex
- trial up to 1 day
- county court
- district judge
- strict timetable for management
40
what is the multi-track for
- damages over £25000 and personal injuries over £1000
- complex cases
- always circuit judge
- cam be county or high however
- high court- if the claim value total is over £100000(but the personal injury part must be over 50,000 to be in high or extremely complex and estimated to be over £15000)
41
what are 5 advantages of the civil court
1) the process is fair in that everyone is treated alike the judge is impartial
2) the trial is conducted by a legal expert with the decision being made by a judge who is an experienced and qualified lawyer
3) enforcement of the court is decision is easier as any decision made by a court can be enforced through the courts
4) there is an appeal process with specific appeal routes from decisions made in courts so if the claimant isn't happy with the decision it is usually possible to appeal against it.
5) it maybe possible to get legal aid although legal aid for civil cases has been considerably reduced.
42
what are 4 disadvantages
1) costs of using civil courts are often more than the amount claimed. in the high court the cost can be hundreds of thousands of pounds for smaller claims the costs are often more than the amount claimed
2) delay- there are many preliminary stages to go through that add to the length of the case is set down for hearing at court there is still a long wait -usually one year for larger claims before the case is heard in court the total of all this can mean that some cases aren't finished for years
3) there may be compulsory steps to be taken before a case is started in court e.g. for some types of cases the parties must use set pre-action protocols and give the other party certain information. when a case is started in court there are forms to be filled in and set procedure to follow. these are all set out in the civil procedure rules. all of this makes it complicated for an ordinary person to take a case without legal advice first.
4) uncertainty- there is no guarantee of winning a case. the person losing a case may have to pay the other sides costs. this makes it difficult to know how much a case is going to cost in advance. delays in cases can also add to uncertainty and cost
43
what is alternative dispute resolution
- attempts to stay out of court
- ADR provides you with the option of having someone who has not been involved in your dispute to work with you and the officer dealing with it
- court is limited to encouraging parties to enter ADR
44
in what dispute cases is ADR not an option?
- payments
- reluctant litigants
- tax credits
- cases being dealt with by criminal investigators
- where claim is 'water tight', meditation may be justifiably refused.
45
explain the case of Dunnett v Railtrack
F: d, the railway authority. C kept horses in a field that adjoined an inter-city railway line. a fate leading from her field as replaced but could be left open. the workmen said that to fit a lock would be illegal. 3 horses escaped and were killed.
H: the court stated that the parties should attempt ADR. the defendant refused outright to consider ADR and offered inadequate compensation and the matter proceeded to the hearing of the substantive appeal.
principle= to flatly turn down ADR could place the party doing so at risk of adverse consequences in costs.
46
what are the 5 types of ADR
- negotiation
- mediation
- conciliation
- arbitration
- online dispute resolution
47
explain what negotiation is and some of the outcomes
- process of trying to come to an agreement with the other person
- this can be done directly by each party or through solicitors
- even when court proceedings have commenced lawyers are often still negotiating which may result in the case being settled out of court.
- quickest and cheapest method of selling a dispute.
- if parties cannot come to an agreement, they may decide to instruct solicitors(solicitors will try and negotiate a settlement)
- even when court proceedings have started, solicitors will continue to negotiate on their behalf. (high number if cases are settled outside of court)
- when lawyers involved there is a cost -longer the negotiation, higher the cost.
48
what are 3 advantages of negotiation
- completely private
- quick resolution, maintaining relationships
- relatively informal method of resolution
49
what are 3 disadvantages of negotiation
- involving solicitors can make the process costly
- offers are often exchanged and are not agreed until the day of court wasting time and money
- people see it as a 'halfway' house and think that they are not receiving as much as if they had gone to court
50
explain the process and the role of mediation
- a neutral mediation helps parties to reach a compromise
- mediation will consult with each party and see how much common ground there is between them. he/she will go to and from between the parties.
- explore the position with each party look at their needs and carry offers to and from
- keep information confidential at all times.
- suitable if there is some hope the parties can co operate
51
name some example of mediation
- centre of effective dispute resolution (CEDR) main commercial mediation service for businesses.
- local ones are available for smaller disputes e.g. UK family mediation service Herefordshire
- MIAM)mediation information and assessment meeting) introduced 2011 compulsory initial meeting for all divorcing couples.
52
what are 3 advantages of mediation
-good alternative to lengthy and expensive court proceedings and will hopefully reduce the number of divorces dealt with although a considerable amount is still cheaper than court. the average cost per client of mediation is £535 compared with £2823 for going to court.
-mediation is independent and the mediator will be agreed by the parties.
-provides people with a quicker cheaper and more harmonious way of dealing with disputes. with the scrapping of legal aid in such cases it is the government's alternative to save money.
-the new scheme will not apply to those who have been victims of domestic violence so it therefore protects the victim and prevent acrimonious meetings between the parties.
-all discussions are confidential and held in private usually on neutral ground.
the agreement is legally binding and can be enforced by the court and there is evidence to suggest that there are certain matters which are more suitably resolved via mediation.
53
what are 6 disadvantages of mediation
- it is not compulsory to commit to the process after the initial assessment so people could end up spending more money by taking it to court anyway.
- successful mediation takes approximately three to five days to resolve where as court could be over in one day. it can take place as often as the parties like and are willing so it can therefore be long drawn out.
- although a lot of family meditators tend to be lawyers this isn't a requirement so there will be no legal expertise if a legal point arises.
- many people take legal advice alongside mediation so they end up saving very little if anything at all.
- some couples are worried about being in the same room as their ex partner and this can often cause undue stress and anxiety.
- if no agreement is reached then the parties have to start again because neither partner is allowed to use the content of the sessions as evidence in legal proceedings.
54
what is conciliation
similar to mediation but the facilitator takes a more pro-active role.
55
what 3 things happen during conciliation
1) will discuss issues with both parties to help them reach a better understanding of the other's person's position
2) will make suggestions for compromise
3) industrial disputes the advisory conciliation and arbitration service (ACAS) can give impartial opinions
56
what are 4 advantages of conciliation
1) it is a cheaper option than litigation
2) it is a private and confidential process
3) ACAS adopts a prevention rather than a cure approach to dispute resolution
4) it identifies and clarifies the main issues in the dispute
57
what are 3 disadvantages of conciliation
1) heavily relies on the skills of the conciliator, successful conciliation requires a skilled conciliator with "natural talent" honed skills and accumulated experience. if this isn't there , may result in weaker party being forced into settlement.
2) amounts paid often lower than amounts agreed in other settlements and considerably lower than amounts awarded by the courts
3) no guarantee that the matter will be resolved, so dispute may end up going to court anyway if conciliation fails resulting in greater costs
58
what are the two very different process covered in arbitration
1) courts use a more informal procedure to hear cases
2) the meaning of the word "arbitration" is where the parties agree to submit their claims to a private arbitration this is a type of arbitrations that is relevant in ADR as it is another way of resolving a dispute without the need for court
59
what act governs arbitration
the arbitration act 1996
60
what are the 2 principles of arbitration set out in S1 of the arbitration act 1996
1) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense
2) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.
61
when does the arbitration act 1996 only apply
when arbitration agreements are in writing
62
what does S15 of the arbitration act 1996 state
that the parties are free to agree on the number of arbitrators so that a panel of 2 or 3 may be used or there may be a sole arbitrator. if the parties cannot agree on a number then the act provides that only one arbitrator should be appointed
63
other than the number of arbitrators what else does the act say that the parties are to agree on
the procedure for appointing an arbitrator. most agreements will either name an arbitrator or provide a method of choosing one. it is often provided that the president of the appropriate trade union will appoint the arbitrator.
64
what does the institute of arbitrators provide
trained arbitrators for major disputes. in many cases the arbitrator will be someone who has expertise in the particular field involved in the dispute but if the dispute involves a point of law the parties may decide to appoint a lawyer
65
what happens if there is no agreement on whom or how to appoint in an arbitration
as a last resort the court can be asked to appoint an appropriate arbitrator.
66
name 4 services the ACAS provide
1) commercial contracts and sporting disputes
2) flexible procedure- number of witnesses, where, when, time etc
3) can choose specialist in the field or legal professional as arbitrator
4) must be carried out in a judicial manner in line with natural justice
67
what is the Scott v Avery clause
businesses can opt to include a Scott v Avery clause in their contracts. the parties signing the contract are agreeing that if a dispute should arise in the future they will use arbitration to solve the dispute. under s9 of the arbitration act 1996 the court may be asked to enforce the arbitration clause in a contract if one of the parties tries to start court proceedings
68
explain what happens in the hearing of an arbitration
the time and date is set when mutually convenient for both parties, it can be informal or formal depending on the parties preference . 'paper arbitration' is conducted where parties submit their dispute in writing to the arbitrator who will then decide who to grant the award. the parties may opt for a hearing where documents are submitted followed by a short hearing where the parties meet the arbitrator before the award is made. the most formal hearing involves lawyers and witnesses attending the hearing in a similar way to a court case.
69
explain the arbitrators role
the parties are free to choose who will be the arbitrator in their case. the arbitrator may be a lawyer but sometimes they will be an expert in the particular area of the dispute. they may choose a single arbitrator or a panel. the institution of arbitrators provide skilled arbitrators whom the parties may choose to employ if they cannot agree.
70
what is the award in an arbitration
the decision is made by the arbitration and it is final. if necessary this award can be enforced by the courts. S69 of the arbitration act 1996 allows for the award to be challenged in the Queen's bench divisional court on a point of law or if it is thought that there has been a serious irregularity. such challenges require leave to appeal
71
what are 8 advantages of arbitration
1) the parties can choose their own arbitrator and can therefore decide whether the matter is best dealt with by a technical expert, a lawyer or a professional arbitrator
2) questions of quality can be decided by an expert in the particular field, saving the expense of calling expert witnesses and the time that would be used in explaining all the technicalities to a judge
3) the hearing time and place can be arranged to suit the parties
4) the actual procedure is flexible and the parties can choose which is more suited to the situation, resulting in a more informal and relaxed hearing than in court
5) the matter is dealt with in private and there will be no publicity
6) the dispute will be resolved more quickly than through a court hearing
7) arbitration proceedings are usually much cheaper than going to court
8) the award is normally final and can be enforced through the courts
72
what are 5 disadvantages to arbitration
1) an unexpected legal point may arise in the case which is not suitable for decision by a non-lawyer arbitrator
2) if a professional arbitrator is used his fees may be expensive
3) it will also be expensive if the parties opt for a formal hearing with witnesses giving evidence and lawyers representing both sides.
4) the rights of appeal are limited
5) the delays for commercial and international arbitration may be nearly as great as those in the courts if a professional arbitrator and lawyers are used.
73
what is online dispute resolution
using technology to facilitate the resolution of disputes between parties
74
when would you use online dispute resolution
it is recommended online dispute resolution advisory group is recommended small claims up to £25,000 should be through an online court
75
what forms can ODR take
1) online evaluation (advice)
2) online facilitation (mediation)
3) online judges (managing and deciding cases)
76
name 3 examples of ODR used in consumer disputes
1) ebay- 60 million disputes resolved via ODR e.g. goods not matching the description
strict time limits of 30 days to resolve dispute
outcome binding under their money back guarantee
2) financial ombudsman- resolve disputes between consumers and uk financial businesses, more than 85% of cases now through ODR
3) youstice.com-service for handling low value consumer complaints
77
name 3 advantages of ODR
1) the current system is too costly too complex and too slow, especially for litigants in person. the online court would be faster more affordable and would take the pressure off the civil court system
2) more accessible for citizens who find going to court difficult e.g. disabled. also more appropriate for an internet generation who conduct a lot of activity online
3) a further generation of "enabling technologies"- artificial intelligence, "big data" stores, crowd-sourcing, virtual meeting rooms and affective computing, which aims to detect human emotions- could lead to more sophisticated online justice in the future
78
name 3 disadvantages of ODR
1) some litigants may feel deprived of an assumed right to have their day in court, where they hope to air grievances before a sympathetic judge. some people also prefer the face-to-face contact with a lawyer or a judge it can be reassuring
2) some people albeit a small percentage may not have access to the internet or the skills to navigate an online court- these people should not be able to access justice using online court
3) only suitable for some types of disputes, especially paper based. not suitable where judge needs to decide who is telling the truth e.g. in a negligence case
79
what is the role of the tribunals
to enforce rights that have bee granted through social and welfare legislations
80
what rights do the tribunals enforce
1) right to a mobility allowance for those who are too disabled to walk more than a very short distance
2) right to payment if one is made redundant from work
3) right to not be discriminated against because of age, sex, race or disability (protected characteristics)
81
what are the 3 types of tribunals
administrative, domestic, employment
82
what does the administrative tribunal do
it deals with disputes between individuals and the state over rights contained in social welfare legislation such as social security, immigration and land
83
what does the domestic tribunal do
these are internal tribunals used for disputes within private bodies such as the law society and the general medical council
84
what does the employment tribunal do
these are the biggest use of tribunals and deal with disputes between employees and employers over rights under employment legislation
85
name 4 of the recommendations and their details for the tribunals, court and enforcement act 2007
1) a single tribunal service to be responsible for all administration of all tribunals-this makes the tribunal service independent of its relevant government department. the support that the service gives to the tribunals is unified both in procedure and administration
2)tribunals should be organised into divisions grouping together similar tribunals- the divisions that were created are: education, financial, health and social services, immigration, land and valuation, social security and pensions, transport, regulatory and employment. each division is headed by a registrar who takes on case management duties in line with the civil procedure rules.
3) the system should be user friendly- users are encouraged to bring their own cases without legal representation. written judgements should be given in plain English.
information about procedures, venues etc. should be made freely available
4) single route of appeal- there is a single route of appeal: with each division having a corresponding appeal tribunal and only then will there be a redress to the court of appeal
86
which chambers are within the administrative appeals chamber
social entitlement, health, education and social care, war pensions and armed forces compensation.
87
which chambers are within the tax and chancery chamber
the general regulatory and taxation chamber
88
which chamber is within the lands chamber
the land, property and housing chamber
89
which chamber is within the asylum and immigration chamber
the asylum and immigration chamber
90
what did the administrative justice and tribunals council replace
the council on tribunals
91
what are the duties included by the administrative justice and tribunals council
- keeping the workings of tribunals under review
- reporting on the constitution and working of tribunals
- considering and reporting on any other matter relating to tribunals
- the whole system is headed by the senior president of tribunals who is responsible for assigning judges to chambers
- tribunal judges are appointed by the judicial appointments commission
- the tribunal service was merged with HM Court Service to become HM courts and tribunal service.
92
what are 5 advantages of tribunals
1) alleviates the pressure on the civil courts
2) they do not suffer the same delays and expense associated with the civil courts
3) tribunals are usually free and do not require the losing party to pay the other parties legal costs
4) the parties may not require a lawyer for their case as the procedure is less formal than a civil trial
5) the panel are experts in the type of dispute that they hear
93
what are the 4 disadvantages of tribunals
1) legal aid is not available for the majority of tribunal hearings
2) there may be inequality in bargaining power between a party who represents themselves and the opposing party who is able to afford a lawyer
3) some tribunals have no appeal routes and others only allow for expensive and complicated appeals for the high court
4) many people do not know about the availability of tribunals that could potentially help them solve disputes that they have.
