THE CIVIL JUSTICE SYSTEM Flashcards
(36 cards)
WHAT IS THE CIVIL JUSTICE SYSTEM?
Civil law: a form of private law involving the
relationships between individual citizens or
organisations.
The civil justice system enables individuals
to assert claims against others, and have
those rights adjudicated and enforced.
ROLE OF THE CIVIL JUSTICE SYSTEM
Identification of objectives:
A last resort designed to encourage settlement out of court,
OR
An accessible system for processing cases cheaply and quickly?
THE CIVIL JUSTICE SYSTEM: THE FACTUAL SITUATION
Nature of civil disputes and people’s
attitudes
Prof. Hazel Genn’s research into peoples’
reactions to breaches of the civil law.
Large representative sample of the public
▶95% take some action to resolve a justiciable civil
dispute.
▶5% do not take action: high % on low incomes +
poor educational qualifications.
MORE LITIGATION OR LESS? POSTITIVE AND NEGATICE FACTORS
More litigation as a POSITIVE factor:
Ensures fair treatment under the law.
People are more willing and able to enforce their
legitimate rights
Access to justice should be encouraged.
NEGATIVE factor:
Imposes a burden on society and on the court
system.
Unhealthy culture of complaint
Inability to accept risk as a normal part of life.
litigation
the process of taking legal action.
THE WOOLF REVIEW: WHATS THAT?
1994: Lord Woolf appointed by government to carry out a far reaching review of the civil justice system.
Complaint: system is unacceptably ineffective.
Consultation process: those working in the civil
justice system + review of the systems in other
countries.
FINDINGS: INJUSTICE
& ADVERSARIAL PROCESS
Out of court settlements usually negotiated
before reaching trial stage. Provide quick end
to dispute and reduction in costs, BUT also
unfair for the claimant.
Encourages tactical manoeuvring rather than
co- operation between the parties.
THE WOOLF CONCLUSIONS
1996: Final report
Problems of the civil justice system are
interrelated Litigation process is controlled by lawyers: draw out the process and so increase costs. Very little judicial management
Process degenerates into excessively adversarial contest.
THE WOOLF PROPOSALS FOR REFORM
“Access to justice” Final report 1996
Overriding objective of the CJS: dealing with cases
fairly. Parties to the litigation on equal footing
Amount of time and money spent on case is
proportionate to the amount of the claim and the
complexity of the issue.
TRACK ALLOCATION: WHATS THAT?
Allocation of case to one of 3 tracks: small track,
fast-track, multi-track.
Track allocation determines future proceedings
Criteria for track allocation: claim’s value + other
factors like complexity.
TRACK ALLOCATION: SMALL CLAIMS
Claims with a value of less than £10,000.
Previously Small Claims court.
Cheap simple resolution of small-scale consumer
disputes.
Case directions: hearing date, and estimated
hearing time.
No disclosure, usually no open-court hearing.
Hearing: simple and informal
Few rules about admissibility or evidence
presentation.
60% of hearing take less than 30 mn.
Costs are limited
Parties represent themselves
No legal aid available for representation
TRACK ALLOCATION: SMALL CLAIMS: APPEALS
SMALL CLAIMS: APPEALS
No right of appeal except if:
1.Serious irregularity affecting proceedings
2.Court made error of law
Out of 80,000 small claims actions per year; 5,000
are appealed
TRACK ALLOCATION:SMALL CLAIMS: EVALUATION
*Quicker, cheaper, simpler than full county court
process.
*Helpful for litigants and court system.
*Effective for individuals and small businesses.
*Avoid claims for small amounts being ignored due
to high litigation costs.
*Increase of public confidence, access to justice
TRAACK ALLOCATION:SMALL CLAIMS: APPEALS
*Small claims judgments can be appealed on same
grounds as other judgments.
FAST TRACK PROCEDURE
*Normally dealt with by county court.
*Actions of a value between £10,000 and £25,000.
*Court issues directions for case management: timetable for disclosure, trial date.
*Duration of trial itself: no more than 1 day
*Trial period: no more than 30 weeks.
*Trial costs are fixed in advance.
MULTI TRACK PROCEDURE
*Cases heard by the High Court
*Actions of a value higher than £25,000.
*Court issues direction for case management, including timetable.
*If case is heavy: management conference.
*No automatic setting of trial date.
*Individual case management according to needs of case.
SANCTIONS
*Courts have increased powers to enforce CPR.
*Aim: litigation to be pursued diligently.
*Main sanctions: adverse award of costs; order for case(or part of a case) to be struck out.
*Enforcement of strict compliance.
APPEALS
Purposes of an appeal:
*Test the validity of a decision
*Correct an error leading to unjust result
*Uniformity in judicial decision-making
*Changing circumstances
*Public confidence
APPEALS IN CIVIL CASES
*Increase in the number of appeals
*Need for reform
*The Bowman review
*Access to Justice Act 1999: introducing the reform
BOWMAN REVIEW: WHATS THATS
*Problems with the Court of Appeal’s procedure that was not able to accommodate influx of cases.
*High number of appeals in cases of low complexity
flooding the Court of Appeal.
*Levels of appeals: most should not be before such high- level judges.
*Recommended changes to the jurisdiction and
constitution of CoA, e.g. allowing single judge to settle case
ACCESS TO JUSTICE ACT 1999: WHATS THAT
*Leave to appeal now required in all cases
*Appeal must have a ‘realistic prospect of success or other
compelling reason’ to be heard
*Normally only one level of appeal to the courts, appeal
should go to lowest appropriate court possible
*Only cases with merit should reach CoA
*CoA can sit with one, two or more judges.
Leave to appeal now required in all cases but two
exceptions in civil law:
* Appeal against committal to prison
* Appeal against refusal to grant writ of habeas corpus
*There is no appeal possible against refusal to grant appeal but new application to same or other court can be made.
what is a leave to appeal
Permission granted to appeal against the decision of a court. From: leave to appeal in A Dictionary of Law »
OUT-OF-COURT SETTLEMENTS
*Definition: OCS are agreements in which the claimant undertakes not to pursue their case in exchange for payment or a further remedy.
*Bargaining in the shadow of the law?
*New civil procedure rules encourage settlements
*Refusal of reasonable settlement may be sanctioned
*Active management by the court: stay of proceedings.
*Litigation: settlements are part of the adjudication
process.
