Resolving Legal disputes, procedures, alternatives and final conclusions

Question 1

What are the seven steps to resolving legal disputes?

Answer 1

Step 1 - Issue a letter of claim
Step 2 - Issue claim form
Step 3 - The defendant will either accept or defend the claim
Step 4 - The case is allocated to the relevant track
Step 5 - The interlocutory stage
Step 6 - The trial
Step 7 - Executing the judgement

Question 2

What is a letter of claim and what is it intended to do?

Answer 2

Written guidelines off best practice. They are intended to encourage parties to exchange information and settle disputes fairly.

Question 3

What is a Issues claim form?

Answer 3

A form which is submitted to the court setting out the details of the claim

Question 4

How long does a defendant have to acknowledge a claim and how long do they have to admit/put in a defence?

Answer 4

14 days to acknowledge
28 days to admit/put in a defence

Question 5

What are the 3 relevant track and what do they include?

Answer 5

Small Claims Track - Claims up to £10,000, County Court, simple, no costs claimed from other side
Fast Track Claims - £10,000 - £25,000, timetable set for steps to be taken and to keep costs to a minimum, County Court, Costs are paid by the losing party
Multi Track Claims - Over £25,000, More flexibility, County or High Court, Costs are paid by the losing party

Question 6

What is the Interlocutory stages?

Answer 6

Pre-trial stages

Question 7

What does the trial involve?

Answer 7

Each party presents their legal arguments before the court. The judge will decide who wins.

Question 8

What does executing the judgement include?

Answer 8

The losing party is expected to pay the sums due by a date set by the court.

Question 9

What is a Distraint Order?

Answer 9

The power to seize company assets

Question 10

What is a Charging Order?

Answer 10

The debt is secured against a home or other property

Question 11

What is Attachment of Earnings?

Answer 11

Money is taken directly from wages to pay the debt

Question 12

What is Third Party Debt Order?

Answer 12

This freezes money held by a third party and then the money owed is paid directly from the bank to the winning party

Question 13

What is Insolvency Proceedings?

Answer 13

If a debt is £750 or more, the winning party can start insolvency proceedings against the debtor. The company is then wound-up and any debts paid

Question 14

What are the four types of alternatives to going to court?

Answer 14

1) Arbitration
2) Ombudsmen Services
3) Conciliation
4) Medition

Question 15

What is Arbitration?

Answer 15

The procedure by which the parties refer their disputes to a third party or parties to be resolved, rather than taking their disputes to court. The parties will agree to be bound by the decision of the arbitrator.

Question 16

What are Commercial Arbitration?

Answer 16

This states that in the event of a dispute the parties will refer to arbitration to find a solution

Question 17

What are the advantages of Commercial Arbitration?

Answer 17

1) The arbitrator will be an expert and have knowledge of the field in which the dispute arose.
2) Arbitration hearings are private
3) The proceedings are also quicker than court actions
4) The proceedings are less formal than a court case and can be schedules more flexibly
5) Costs are lower

Question 18

What are the disadvantages of Commercial Arbitration?

Answer 18

1) Arbitrators do no have the powers of a judge
2) Lack of legal knowledge
3) Works best when the parties are in a position of equal bargaining power

Question 19

What principles does section 1 of the Arbitration act (1996) state that it was founded on?

Answer 19

1) The object of arbitrators is to obtain the fair resolution of disputes by an impartial tribunal without necessary 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
3) In matter governed by this part of the Act, the court should not intervene

Question 20

What is Ombudsmen Services

Answer 20

If the dispute falls into either the legal, banking, insurance or financial services then the ombudsmen service can investigate and resolve problems

Question 21

What is Conciliation

Answer 21

Conciliation is where a conciliator will assist the parties to make a decision through exploring all possible solutions for settling the dispute and points out the positives and negatives of the different solutions

Question 22

What is Mediation

Answer 22

A mediator is appointed by the parties and acts as a facilitator through which the disputing parties can communicate and negotiate.

Question 23

Who oversees a Tribunal court case?

Answer 23

It’s overseen by a Tribunal Judge who is legally qualifies and is assisted by two lay persons who have specialised knowledge in the area of the dispute

Question 24

What do Tribunal hearings cover?

Answer 24

Disputes relating to tax, immigration, social security entitlements and employment disputes

Question 25

What are the advantages of Tribunals?

Answer 25

Cheaper than going to court
Informal
Quick
Flexible
Specialised knowledge from the persons sitting on the tribunal

Question 26

What are the disadvantages of Tribunals?

Answer 26

No access to legal aid
Become more formal over time
Any urgent cases are not resolved quickly enough
Little publicity
May be harder to find the outcome or similar cases

Question 27

What were the 4 key reforms that were made to the civil justice system due to Lord Woolf’s report in 1994?

Answer 27

1) The judge now manages the case
2) Pre-Action Protocols were introduced to encourage greater contact between the parties at an early stage
3) To encourage and facilitate the use of alternative dispute resolution
4) The allocation of a dispute to one of the three tracks (small, fast or multi)

Question 28

What are the 4 reasons why it might not be a good idea to bring a civil action?

Answer 28

1) Even though you have a strong case it may not be worth suing if the other part does not have the means to pay
2) A company may have gone into liquidation and does not exist anymore
3) Bringing an action can be expensive so a party interested in starting an action may not gain was much as they think
4) The losing party may be liable for the legal fees of the winning party

Question 29

Why are out of court settlements encouraged?

Answer 29

Because of court fees, time and effort that it takes

Question 30

What is overruling?

Answer 30

Overruling occurs where an appeal court believes that a precedent no linger represents the law

Question 31

What is distinguishing?

Answer 31

It allows a court to avoid following a previous decision by declaring the facts before it as significantly different enough for it not to be followed

Question 32

Can judgements be reversed, overruled or distinguished?

Answer 32

Yes but only with judgements from lower courts.

Question 33

Why can the doctrine of binding precedents be a good idea?

Answer 33

1) It provides certainty to the law
2) It means the law can be flexible
3) It keeps the law on a practical level
4) It can be quicker than waiting for Parliament to legislate
5) It can save litigants money as they can be able to predict an outcome

Question 34

What are the disadvantages of binding precedents?

Answer 34

1) The courts can distinguish cases which can lead to some distorted applications
2) The certainty can make the law rigid
3) There is so much case law it can be hard finding the right precedent
4) The law is developed in a haphazard way
5) Judges are not democratically appointed and law-making by judges conflicts with parliamentary sovereignty