The Legal System - civil courts and other forms of dispute resolution

Question 1

What are civil courts?

Answer 1

They deal with non criminal matters, such as contract, tort and human rights issues

Designed to deal with disputes between individuals and/or businesses

Question 2

What are the two key civil courts?

Answer 2

County and High court

Question 3

What does jurisdiction mean?

Answer 3

The power each court has to deal with certain types of case

Question 4

Jurisdiction of civil courts - county court
(Hears 3 things)

Answer 4

The county court deals with the majority of civil matters

It hears:
- contract disputes (businesses trying to recover money they are owed)
- tortious (civil wrong) actions - landowners seeking to prevent trespass issues
- compensation claims for injuries to claimants

Question 5

Jurisdiction of the high court
(what are the three divisions and what do they each hear)

Answer 5

High court has three divisions

Kings Bench Division hears…
- contract cases, e.g failure to pay for goods and breach of contract
- tort cases e.g defamation, trespass, negligence
- judicial review actions

Chancery Division hears…
- specialist civil case which include company law, patent and contentious probate
- professional negligence cases
- competition law cases

Family Division hears…
- family-related cases
- cases involving children under the children act 1989
- wardship cases involving custody and day to day care of minors

Question 6

Describe and explain what a pre action protocol is

Answer 6

First step to take before issuing any court claim is to follow an appropriate pre action protocol

Explaining the conduct and set out steps the court would normally expect parties to take before starting any court action

Aim - ensure that as many of the problems as possible can be resolved without the need for court hearing

Question 7

Issuing a claim

Answer 7

If a dispute cannot be settled, the claimant can issue proceedings by completing N1 form and a paying fee (the amount of the fee will depend on amount being claimed)

An N1 claim form has to be completed with the name and addresses of the parties, brief details of the research for the claim and the amount of money being claimed

Question 8

Defending a claim

Answer 8

Court will generally send, or serve, the claim on the defendant who then has a choice of actions

1. Admit the claim, pay full amount to claimant/court. If this option is chosen the case will end
2. Admit the claim, pay instalment. If this option is accepted by claimant, case will end when full amount has been paid
3. Dispute the claim and file a defence setting out why the claim should not be paid, either in full/part
4. File an acknowledgement of service confirming receipt of the claim form but asking for time to file a defence

If defendant fails to respond when receiving the claim - claimant can apply for judgment in default - claim is ‘won’ and an attempt can be made to force the defendant to pay the sum claimed

If claim is defended a judge must allocate it to an appropriate case management track for it to be dealt with in the most just and cost effective way

Question 9

Explain the small claims track

Answer 9

• less than £10,000
• the claim will be heard by a district judge and lawyers are not encouraged
• county court
• the time allocated to a hearing will be a max of 2-3 hrs and each party will be allowed a limited n.o of witnesses

Question 10

Explain the fast track

Answer 10

£10,000 - £25,000

A case allocated to this track will have a strict timetable set at a max of 30 weeks. If parties do not follow the timetable - the claim can be thrown out/judgment in default can be awarded

Hearing will be a max one day in open court, limited n.o of witnesses called

Usually heard by circuit judge

Each of the parties can be represented by a lawyer

Question 11

Explain the multi track

Answer 11

Usually allocated to the county court

Circuit judge

Case will be strictly case-managed by the circuit judge, who sets a strict timetable, disclosure of relevant documents, n.o of witnesses and how long the case will last

If the case involves complicated points of law/evidence/involves for more than 50K in values, it can be passed up to the high court (high court judge)

Question 12

Appeals and appellate courts

Answer 12

If either party in a case is dissatisfied with the decision made by the judge at first instance, then it is possible to appeal

First appeal from a decision of the small claims court/fast track is heard by a next level judge. If the case was first heard by district judge, appeal will be to circuit. First heard by circuit, appeal is to high court judge

Possible for a second appeal from decision of a circuit /high court judge to go to court of appeal, but this would be in exceptional circumstances and only with CoA’s permission

Appeal from a decision of the multi track(district/circuit judge) is to the CoA
Appeal from high court is to CoA or rare occasion to the supreme court (leap frog) where point of general public importance is present

Question 13

Employment tribunals (resolving dispute without going to court)

Answer 13

Specialist employment ‘courts’ that deal with such issues outside the civil courts system

Deal with issues such as a claim of unfair dismissal, discrimination in the workplace/redundancy

Employment tribunal sits in a separate building and has a set process, less formal than court

Parties can represent themselves, have an official in their union represent them, or use a lawyer

Question 14

What are the four types of ADR

Answer 14

Negotiation
Mediation
Conciliation
Arbitration

Question 15

Describe negotiation as a type of ADR

Answer 15

Most basic form of ADR
- where an individual attempts to resolve an issue directly, privately and possibly face to face with the other party
- If the negotiation is carried out by the parties, it should not cost them anything, but involvement of lawyers will inevitably involve cost

Examples include; noise caused by neighbours, returning faulty goods to a shop, receiving poor service from tradesperson

Question 16

Describe mediation as a type of ADR

Answer 16

Slightly more formal than negotiation, but still relatively informal method of dispute resolution
- where a neutral third party attempts to resolve the issue with both parties, without giving their opinion, unless asked to do so
- parties have control over the process, so they can stay as long as they wish and can withdraw at any time
- a successful mediation depends on both parties embracing the concept and actively participating.
- In the end it is hoped the parties will reach a compromise and agreement acceptable to both parties

Examples include; businesses negotiating or renegotiating contracts, marriage guidance to avoid separation/divorce

Question 17

Describe conciliation as a type of ADR

Answer 17

It is a form of mediation
- where a third party is active in raising the ideas for compromise between the parties in dispute
- parties still have control over the process and may withdraw at any time

Examples include: disputed access to goods and services by disabled people, cases of alleged discrimination, some employment disputes, some family law matters involving the family division of the high court

• ACAS, tries to encourage the parties in an employment dispute to reach settlement before a claim can be issued in an employment tribunal

Question 18

Describe arbitration as a type of ADR

Answer 18

Where both parties voluntarily agree to let their dispute be left to the judgment of a neutral arbitrator. The arbitrator is impartial - they don’t take sides but hear all of the arguments and make a decision based on the evidence

There are 2 grounds for appeal 1) arbitrator got the law wrong 2) arbitrator did not follow the correct procedure

Can vary in formality…
- Can be very informal, paper base hearing (parties send their written points and the arbitrator makes their decision ‘award’ based on reading the documents
- Can be almost ‘court like’, with both parties presenting their evidence and the arbitrator making the decision

Before arbitration is used, both sides must agree that the arbitrator’s decision will be binding

Examples include:
- package holiday contracts
- disputes between employers and employees using ACAS

Question 19

What are 4 advantages of using civil courts

Answer 19

Fair process

Outcome is legally binding

Legal expertise

Parties have thee right to appeal against the decision of court

Question 20

Explain why an advantage of using civil courts is that judges are impartial

Answer 20

Using civil courts is fair because judges must be impartial
- Meaning everyone is treated the same way

• Judges control court proceedings
• To resolve a civil dispute, using a civil court allows the case to be allocated the most suitable track
• The parties can also appeal if they are not happy with the judge’s decision, meaning civil courts are procedurally just

Question 21

Explain why an advantage of using civil courts is that the outcome is legally binding

Answer 21

Meaning that the award is enforceable through the courts decisions made and cannot be argued with unless a party chooses to appeal
- not the case for most forms of ADR

• legal aid is 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
• The binding nature of court proceedings encourages the parties to negotiate seriously and look to settle cases where possible

Question 22

Explain why an advantage of using civil courts is legal expertise

Answer 22

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. ensures consistency and efficiency

Question 23

Explain why an advantage of using civil courts is that the parties have a right to appeal against the decision of the court

Answer 23

This is an advantage compared to negotiation, mediation or conciliation where no appeal is available

However if the party that appeals is unsuccessful they are bound to comply with the courts decision

Question 24

What are the 4 disadvantages of using civil courts

Answer 24

Expensive

Long and time consuming process

Can damage future relationships

Uncertainty

Question 25

Explain why a disadvantage of using civil courts is that it is expensive

Answer 25

Using civil courts is expensive and 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.

If a party loses they may also have to pay the other side costs

Question 26

Explain why a disadvantage of using civil courts is that it is very long and time consuming

Answer 26

Pre-trial procedure involves a lot of steps e.g claim forms, response from D, allocation e.t.c.

Usually a wait of a year before case is even heard. Adds to cost. ADR would be quicker and easier to use

Some complicated cases may take several years to be resolved

Question 27

Explain why a disadvantage of using civil courts is that it can damage future relationships

Answer 27

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

Question 28

Explain why a disadvantage of using civil courts is that it can be uncertain

Answer 28

Taking a case to court carries significant uncertainty with it

There is no guarantee of winning at trial, no matter how strong a case may look on paper

In addition, the fact that the loser pays the winner’s costs makes it difficult to know in advance the likely cost of a case

Question 29

What are the advantages of negotiation as a form of ADR

Answer 29

It can be straightforward contact between the parties

Low or no cost - no need for lawyers

The parties themselves are in control

Relationships between the parties are preserved

Continued business relationship

Question 30

What are the disadvantages of negotiation as a form of ADR

Answer 30

One of the parties may not be prepared to negotiate with the other

One of the parties may be hostile towards the other

Either party may believe they are ‘right’ and not prepared to settle

Court proceedings may be the only way to resolve the dispute

Question 31

What are the advantages of conciliation as a form of ADR

Answer 31

Cheaper than taking a court case

The parties have some control choosing the conciliator and the process

Future business relationship can be preserved

Question 32

What are the disadvantages of conciliation as a form of ADR

Answer 32

The conciliator may force a resolution on one or both of the parties

The process may not bring about a resolution

The result may not be binding on one or both parties

Question 33

What are the advantages of mediation as a form of ADR

Answer 33

Cheaper than a court case

The parties are in control over the process

Future business and personal relationships can be maintained

Question 34

What are the disadvantages of mediation as a form of ADR

Answer 34

One of the parties may be unwilling to take part in the process

The parties may be unwilling or unable to reach a settlement

The result may not be binding on one or both the parties

Question 35

What are the advantages of arbitration as a form of ADR

Answer 35

Cheaper than a court case

The arbitrator will be qualified and experienced

The arbitrator’s decision is final and binding

The arbitrator’s decision can be enforced in court

Question 36

What are the disadvantages of arbitration as a form of ADR

Answer 36

The process can be formal and complicated

It is likely to be more expensive than other forms of ADR

It is not a suitable process if there is a complicated point of law involved

Question 37

In general what are the advantages of ADR

Answer 37

Using a method of ADR is less formal than using courts
- negotiation can involve just the parties themselves
- mediation and conciliation, the parties are encouraged to reach a settlement themselves
- in arbitration, the parties can set the form of the process

Lawyers are not encouraged as:
- the processes are flexible and less formal
- there is no rule that the loser pays winner’s cost
Meaning lower costs for the parties and less confrontation throughout the process - no winner/loser situation, parties can continue a personal/business relationship

Question 38

In general what are the disadvantages of ADR

Answer 38

No funding is available for claimants using ADR- may put an unrepresented claimant at a disadvantage in arbitration and employment, where a business or employer is likely to be legally represented

If a claim is settled using one of the methods of ADR, the claimant is likely to receive lower compensation than may be awarded by court

Limited rights of appeal for most forms:
- arbitration, an appeal can only be made on the grounds of serious irregularity
- employment tribunals, an appeal can only be made if there is a point of law involved
Any appeal is likely to require a lawyer and involve more costs for a claimant

Question 39

Advantages of employment tribunals

Answer 39

Claims heard by specialist panel

The hearing will be often heard without public or press present - ensure confidentiality for both parties

The hearings will generally be informal and short - less than a day in length

Question 40

Disadvantages of employment tribunals

Answer 40

A claim has to be issued quickly after the issue arises

Funding is not available. An employee may be at a disadvantage against an employer who can pay for legal representation

There may be delays in setting hearing dates